Taylor v R [2013] NZCA 55 (14 March 2013)

Last Updated: 21 March 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA517/2012 [2013] NZCA 55

BETWEEN DEREK JOHN TAYLOR Appellant

AND THE QUEEN Respondent

Hearing: 21 February 2013

Court: Arnold, Simon France and Dobson JJ

Counsel: R G R Eagles for Appellant P K Feltham for Respondent

Judgment: 21 February 2013

Reasons: 14 March 2013

JUDGMENT OF THE COURT

A The first of question of law:

Did the High Court err by having regard to the ability of counsel to seek clarity on what was meant by significant?

is answered “yes”.

B The second question is not answered.

100. The Court, pursuant to ss 144B and 123 of the Summary Proceedings Act 1957, extends the time for Mr Taylor to file an appeal against conviction.

4. The appeal is allowed, and the four convictions entered on 30 January 2012, following guilty pleas, are quashed. The matter is remitted to the District Court for Mr Taylor to plead again to the charges.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] This appeal by way of case stated from the High Court concerns whether a sentence imposed in the Queenstown District Court following a sentence indication differed sufficiently from the indication to warrant allowing Mr Taylor an opportunity to vacate his guilty pleas. On the day of the appeal hearing this Court issued a results judgment in which it allowed the appeal, quashed the convictions and remitted the matter back to the District Court. We now give our reasons.

Facts

[2] Mr Taylor is a recidivist property offender. Prior to the present matters, he had 23 convictions for burglary, and over 213 convictions for other dishonesty offending. The present charges relate to events that occurred over a short period of time in late 2011.
[3] The sequence was:

• (a) 7 November 2011 – charged with burglary, and remanded in custody. The incident occurred on 29 September 2011, and was soon amended to a charge of unlawfully entering a yard;
• (b) 8 November 2011 – granted bail on what was at that point still a burglary charge;
• (c) 7 December 2011 – charged with obtaining $50 worth of goods by deception. This offending occurred on 20 November, so during the time when he was on bail for the original 7 November burglary charge. Mr Taylor was remanded in custody;
• (d) 27 December 2011 – whilst still in custody, charged with theft of copper piping and pressure valves from an address where they were stored. This offending occurred sometime between 1 November and 23 December 2011. Mr Taylor was again remanded in custody;
• (e) 29 December 2011 – granted bail on all charges;
• (f) 30 December 2011 – stole a wallet and a purse (containing cash ($180) and credits cards) from two lockers at a local swimming pool. Arrested on 31 December and remanded in custody. Because police believe the lockers were in a secure area, the offence is charged as burglary.

[4] The sentencing indication, and sentence, then occurred on 30 January 2012. By this stage Mr Taylor was accepting responsibility for the swimming pool thefts, but disputing it was burglary. He contended the lockers were in a publicly accessible area.
[5] Meanwhile, however, Mr Taylor’s various court appearances over the preceding months had involved him being transported from Invercargill prison to Queenstown. He was not enjoying the trips, and wanted to resolve matters if possible.
[6] Mr Taylor accordingly instructed counsel to obtain a sentencing indication on the charges, and particularly the burglary. Mr Taylor advised:

If he [the Judge] indicates a sentence of less than 15 months’ imprisonment, you are instructed to enter a guilty plea.

The sentencing indication and what followed

[7] The matter came before Judge Turner, who advised:

... I would have thought a starting point of 12 months was warranted for burglary during the daytime. There would need to be a significant uplift for the aggravating feature being his 21 previous burglary convictions and 213 other dishonesty convictions and the mitigating factor would be 25 percent reduction in the penalty for the early guilty plea.

[8] Mr Taylor thereupon instructed counsel to enter a guilty plea. There does not appear to have been discussion between counsel and him over what might be meant by “significant uplift”. No clarification was sought from the Judge.
[9] Judge Turner sentenced Mr Taylor that day. Having heard submissions, he took the indicated starting point of 12 months for the burglary. However, there was then a global uplift of two and a half years for:

• (a) the fact that Mr Taylor was on parole at the time;
• (b) the fact that Mr Taylor had only been released from custody 24 hours earlier; and
• (c) Mr Taylor’s previous offending.

[10] That meant an aggravated starting point of three and a half years’ imprisonment. That was reduced to two and a half years’ imprisonment for the guilty plea, and that was the sentence imposed.[1]
[11] It is to be observed that no complaint was made at the time to Judge Turner about the disparity between his sentence indication and the final sentence, although Mr Taylor seems to have expressed unhappiness to counsel about the final sentence.
[12] The matter was appealed. Different counsel (Mr Eagles) was now acting for Mr Taylor. The primary ground of appeal appears to have been the legitimacy or otherwise of the uplift. However, the sentencing indication disparity was also addressed, and was dealt with in the appeal judgment under a heading “Addendum”. Whata J recorded that Mr Eagles had raised concerns about the effect of the sentencing indication. However, his Honour noted that sentencing counsel could have sought clarity. Further, counsel should have expected an uplift of 18 months to two years. These two factors meant that the sentencing indication was not a matter that was relevant to the Court’s assessment of whether the sentence was manifestly excessive.[2]
[13] Mr Taylor then sought leave to appeal to this Court under s 144 of the Summary Proceedings Act 1957. The proposed questions of law were about the availability of a 250 per cent uplift, and whether the sentencing indication was wrong in principle because it used the term “significant”. Leave was declined on these questions, but after discussion was given on two others.

Questions of law

[14] The two questions concerning which leave was granted are:[3]

Did the High Court err by having regard to the ability of counsel to seek clarity on what was meant by significant?

Was an uplift in the order of 18 months to two years to be expected by counsel?

[15] Both questions focus on the sentencing indication, and particularly the actions of sentencing counsel. In the results judgment already issued, we indicated the answer to the first question was “yes”, and we declined to answer the second. The reasons we now deliver have the effect of answering both.

Discussion

[16] The observations of this Court in the similar case of R v Gemmell provide an appropriate starting point:[4]

We are satisfied that so great was the departure from the prior indication that the sentencing Judge should not have imposed the sentence without considering whether or not to give an opportunity for review of the guilty plea. Nor should counsel have allowed the sentencing to conclude as it did without ascertaining whether the plea would be maintained and, if necessary, intervening on behalf of the prisoner.

In the circumstances, the risk of injustice is inescapable and we consider it unnecessary to examine the merits of the defences said to have been abandoned and the challenge to the victim impact statement.

[17] It is important to recall that sentencing indications, now provided for in the Criminal Procedure Act 2011, are intended to provide clarity and certainty about the actual jeopardy a person faces if he or she pleads guilty. Guilty pleas are entered on the basis that the person will receive a sentence that accords with the advice he or she received from the Court prior to pleading.
[18] It follows, as Gemmell makes clear, that where there is a significant disparity between indication and final sentence, and where the plea has flowed from the indication, the accused person must be offered the opportunity to withdraw his or her plea. An expectation has been created and not met, and the accused should not be held to his or her plea.
[19] Seen in this proper light, the resolution of the present case is clear. Whatever the reason for what has happened:

• (a) Mr Taylor has received a sentence which is twice as long as he indicated to counsel he was willing to plead to;
• (b) the sentencing indication did not make it clear that by pleading guilty Mr Taylor was exposing himself to this length of sentence, and there is no suggestion Mr Taylor realised that.

[20] Accordingly, Mr Taylor should have been offered the chance to vacate his pleas. Sentencing counsel should have sought that opportunity given she, and not the sentencing Judge, was aware of Mr Taylor’s instructions. We add that we have considerable sympathy for the Judge, who was asked to provide an indication on short notice in the midst of a busy list. There would have been little opportunity to reflect upon the defects in the information available to him.
[21] That is enough to dispose of the case, but we offer some observations on what happened. First, looking at the indication itself, it can be noted that the Criminal Procedure Act defines sentencing indications as being about sentences.[5] Starting points, as used in the present case, do not provide the clarity that should underlie an indication. There are too many adjustments still to occur, as this case illustrates.
[22] Next, the Criminal Procedure Act sets out some mandatory information a Judge must have.[6] Since the expectation is to give an indication of the sentence (be it a range, or a type, or the actual sentence), it is important that those seeking the indication ensure the Judge has the relevant information. It is not apparent in the present case that the Judge was aware of the parole and recent release from custody factors, yet these were the two matters that drove the uplift.
[23] Finally, in relation to challenges such as the present, regardless of whether the challenge is made to the sentencing judge or on appeal, it is necessary to keep the correct focus. It is not a protracted inquiry into fault, nor into the merits of the accused, nor into the merits of the sentence actually imposed. A sentence indication generates an expectation. If it is relied upon, and then for whatever reason the expectation is not met, the accused must be given the opportunity to vacate the pleas. What is in issue is the integrity of the sentence indication system.
[24] It follows from what we have said that we consider the focus of the questions of law identified for this appeal to be incorrect. The inquiry is not on what defence counsel should or should not have done or understood. Likewise, issues about the predictability and correctness of an uplift of this magnitude are equally not the correct focus.
[25] It is plain on the material before us that Mr Taylor did not plead on the basis of an understanding that the sentence would be of this length. That is what matters.

Disposition

[26] As noted, we are concerned about the time that has elapsed since Mr Taylor was taken into custody on 31 December 2011. On the view we take it is necessary for the matter to start again, and it is important that this occur as soon as possible.
[27] A potential obstacle is that the appeal to the High Court was against sentence only. Perhaps it was thought that if the sentencing indication complaint succeeded the High Court might resentence. But it is clear that Mr Taylor, faced with a much longer term of imprisonment than 15 months, wishes to dispute his guilt in relation to the burglary charge. In order for that to happen there needed to be an appeal against conviction, such appeal being brought on the basis that he should be permitted to vacate his guilty plea.
[28] Section 144B of the Summary Proceedings Act 1957 confers on this Court the powers that the High Court had on the appeal. This includes the power in s 123 of the Act to extend time. It is apparent from the grounds advanced on appeal that the appeal notice should have included an appeal against conviction in order for the Court to give the relief being sought. Accordingly, we extend the time to appeal against conviction, and treat the appeal as being against both conviction and sentence.
[29] The appeal is allowed, and Mr Taylor’s convictions entered on 30 January 2012 on all four charges he faced are quashed. It may be that he will again plead guilty to the other three charges and dispute only the burglary, but it is not sensible to seek to unravel what was a global plea.
[30] The matter is remitted to the District Court for Mr Taylor to plead again to the charges.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Police v Taylor DC Queenstown CRI 2011-059-1489, 30 January 2012.
[2] Taylor v Police [2012] NZHC 1096 at [16].
[3] Taylor v Police [2012] NZHC 1896.
[4] R v Gemmell [2000] 1 NZLR 695 (CA) at [18]–[19].

[5] Criminal Procedure Act 2011, s 60. We note the Act was not in force at the time Judge Turner gave this indication.
[6] Criminal Procedure Act 2011, s 61.