Taylor v R [2018] NZCA 444; [2019] 2 NZLR 38 (19 October 2018)

Last Updated: 22 March 2021

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IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA403/2018 [2018] NZCA 444

	BETWEEN	BRIAN PAUL TAYLOR Appellant
	AND	THE QUEEN Respondent

Hearing:	4 October 2018
Court:	Miller, Woolford and Collins JJ
Counsel:	JHM Eaton QC for Appellant B Hawes and H F McKenzie for Respondent
Judgment:	19 October 2018 at 10.00 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal is allowed. The sentence is quashed.

100. A sentence of four years and one month’s imprisonment, to be served cumulatively on the existing sentence, is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

• [1] Mr Taylor appeals a sentence of five years and six months imprisonment imposed by Judge Edwards in the District Court at Palmerston North on 7 November 2017, in relation to eight charges of supplying methamphetamine and one charge of conspiring to supply cannabis.^[1] The sentence was imposed cumulatively with a sentence of 16 years imprisonment that Mr Taylor was already serving.
• [2] Mr Taylor requires an extension of time as his notice of appeal was filed seven months out of time. The Crown properly accepts it has not been prejudiced by the delay and does not oppose an extension being granted. We therefore grant Mr Taylor’s application for an extension of time to appeal.

Background

• [3] In November 2004, Mr Taylor was sentenced on appeal to a total of 11 years imprisonment in relation to a number of charges, the most serious of which were two charges of wounding with intent to cause grievous bodily harm and one charge of aggravated robbery.^[2] The effect of the sentence imposed by Judge Edwards is that Mr Taylor will serve, in total, 21 years and six months in prison for all of his offending, including offending that pre-dates the November 2004 judgment.
• [4] At the time of the offending to which this appeal relates, Mr Taylor was a prisoner at Manawatu Prison. His security classification meant that the Department of Corrections did not consider him eligible for reintegrative activities, such as the release to work programme or temporary releases. As a consequence, Mr Taylor’s applications for parole had been rejected by the Parole Board.
• [5] In November 2016, police commenced an investigation into methamphetamine dealing in the Manawatu area, focusing upon communications traced to Mr Taylor in Manawatu Prison. This investigation found Mr Taylor was running a methamphetamine supply operation. Others involved in the operation included Mr Taylor’s mother, whose role was described as “an active investor”. During the period the operation was monitored, police concluded Mr Taylor supplied 112.05 grams of methamphetamine.
• [6] Mr Taylor and his co-defendants sought a sentence indication, which was given by Judge Edwards on 8 September 2017. In her sentence indication, the Judge adopted the methodology that she ultimately followed when she sentenced Mr Taylor and his co-defendants. The sentence indication was one of five and a half years imprisonment, cumulative on Mr Taylor’s existing sentence.
• [7] Mr Taylor’s right of appeal is not affected by the fact the sentence imposed replicated the sentence indication, which he accepted.^[3]
• [8] Mr Taylor accepted the sentence indication and pleaded guilty. No pre‑sentence report was called for. This was unfortunate as a pre-sentence report may have been able to convey to the Judge the difficulties Mr Taylor had in trying to satisfy the requirements for parole in circumstances when he was deemed ineligible to participate in re-integrative activities.

District Court decision

• [9] The Judge adopted an effective starting point of six years and two months imprisonment for the methamphetamine offending.^[4] She then added six months imprisonment to reflect the conspiracy to supply cannabis charge.^[5]
• [10] The Judge imposed a further uplift of 20 months (25 per cent) to reflect the fact that Mr Taylor’s offending occurred while he was in prison.^[6]
• [11] The Judge also provided Mr Taylor with a discount of two years and one month (25 per cent) on account of his early guilty plea, and a further discount of nine months (12 per cent) to reflect the totality of the sentence when combined with his existing sentence.^[7]

Appeal

• [12] In this Court, Mr Eaton QC accepted the starting point adopted by Judge Edwards was within the range that was available. We agree. This case fell in the middle of band two of R v Fatu and justified a starting point of about six years imprisonment.^[8]
• [13] Mr Eaton took issue with the uplift of 25 per cent to reflect the fact Mr Taylor’s offending occurred when he was in prison. In our assessment, however, that uplift was within the range that was reasonably available and reflected the need to try to dissuade prisoners from engaging in serious criminal offending whilst in prison. This Court has said that “the cases establish a consistent pattern of significant uplifts for drug offending while in prison.”^[9]
• [14] The focus of Mr Eaton’s submissions was on the totality principle, and in particular the need to ensure that the cumulative effect of the sentence imposed on Mr Taylor did not produce a crushing sentence that deprived him of all hope.^[10]

Analysis

• [15] We agree with all aspects of Judge Edwards’ sentence other than her approach to totality. In this case, the question of totality needed to be assessed by evaluating the necessity for an effective sentence of 21 and a half years imprisonment on this man. We say “effective” because, until Mr Taylor can receive the benefit of reintegrative programmes, he is unlikely to be granted parole.
• [16] We consider it significant that in the District Court both the Crown and defence submitted that a discount of up to 35 per cent would be available to reflect the totality principle. This approach was in line with comparable cases where the actual offending took place outside the prison environment.^[11] Unfortunately, Judge Edwards appears to have been heavily influenced by the fact Mr Taylor’s offending occurred when he was in prison, saying that the principle of totality must not undermine the requirement for a stern response to offending in the prison environment.^[12] The Judge therefore provided a very modest discount when considering totality.
• [17] We agree with Mr Eaton that Mr Taylor has been given a crushing sentence that sends to him the message he has no hope of being reintegrated into society. That consequence is not consistent with the principle of rehabilitation, a cornerstone of the Sentencing Act 2002.^[13]
• [18] We are therefore going to allow Mr Taylor’s appeal against sentence and substitute the discount of nine months for totality adopted in the District Court with one of two years and two months. This means Mr Taylor’s end sentence will be reduced to four years and one month’s imprisonment. That sentence is cumulative on his existing sentence.

Result

• [19] The application for an extension of time to appeal is granted.
• [20] The appeal is allowed. The sentence is quashed.
• [21] A sentence of four years and one month’s imprisonment, to be served cumulatively on the existing sentence, is substituted.

Solicitors:
Crown Solicitor, Christchurch for Respondent

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^[1] R v Taylor [2017] NZDC 25439 [Sentencing judgment].

^[2] Taylor v R CA178/04, 22 November 2004 at [36]. In that case, this Court reached an effective end sentence of 11 years’ imprisonment for Mr Taylor’s offending, but that was imposed cumulatively on sentences Mr Taylor was already serving for earlier offending. The combined effective sentence was 16 years’ imprisonment.

^[3] Criminal Procedure Act 2011, s 245.

^[4] Sentencing judgment, above n 1, at [17].

^[5] At [17].

^[6] At [18].

^[7] At [19] and [21].

^[8] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) at [34(b)].

^[9] Mau’u v R [2015] NZCA 80 at [27(c)].

^[10] R v Bradley [1979] NZCA 33; [1979] 2 NZLR 262 (CA) at 264; and R v Johansen (1997) 15 CRNZ 111 (CA) at 120–121.

^[11] R v Milham HC Auckland CRI-2008-044-7390, 19 November 2010; and Faaleaga v R [2011] NZCA 495. Compare Tryselaar v R [2012] NZCA 353; R v Connelly [2010] NZCA 52; Ratu v R [2016] NZCA 97; and Karetu v R [2013] NZCA 408.

^[12] Sentencing judgment, above n 1, at [21].

^[13] Sentencing Act 2002, s 7(1)(h).