Taylor v R [2021] NZCA 606 (17 November 2021)

Last Updated: 23 November 2021

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

CA681/2019 [2021] NZCA 606

	BETWEEN	JAMES MATTHEW TAYLOR Appellant
	AND	THE QUEEN Respondent

Hearing:	1 September 2021
Court:	Gilbert, Duffy and Peters JJ
Counsel:	A J Davis for Appellant J E Mildenhall for Respondent
Judgment:	17 November 2021 at 9.30 am

JUDGMENT OF THE COURT

1. The appeal against conviction on the aggravated burglary charge is allowed. The conviction on that charge is set aside and a conviction for burglary under s 231(1)(a) of the Crimes Act 1961 is substituted.
2. The appeal against sentence is allowed. The sentences imposed in the District Court are set aside and the following sentences substituted, reducing the effective end sentence of 10 years’ imprisonment to six years and 10 months’ imprisonment.

100. The sentence on the charge of injuring with intent to cause grievous bodily harm is reduced from five years and seven months’ imprisonment to four years and nine months’ imprisonment.

4. Mr Taylor is sentenced to two years and one month’s imprisonment on the charge of burglary of the property at Wairakei Road, Christchurch. This is to be cumulative on the sentence imposed on the charge of injuring with intent to cause grievous bodily harm.
5. The sentence on the charge of possession of instruments for burglary is reduced from nine months’ imprisonment to six months’ imprisonment. This is to run concurrently with the sentence imposed for the Wairakei Road burglary.
6. The sentence on the charge of burglary of Odyssey House in Greers Road, Christchurch is reduced from 12 months’ imprisonment to six months’ imprisonment. This is to run concurrently with the sentence imposed for the Wairakei Road burglary.
7. The sentence on the charge of breach of release conditions is reduced from three months’ imprisonment to two months’ imprisonment. This is to run concurrently with the sentence imposed for the Wairakei Road burglary.

____________________________________________________________________

REASONS OF THE COURT

(Given by Duffy J)

• [1] Following trial by jury in the District Court at Christchurch, James Matthew Taylor was found guilty of aggravated burglary of a property in Wairakei Road, Christchurch.^[1] Around the same time, Mr Taylor also entered guilty pleas in relation to three unrelated sets of offending and was convicted of injuring with intent to cause grievous bodily harm (the GBH offending); burglary of Odyssey House in Greers Road, Christchurch; and breach of release conditions. On 16 December 2019, he was sentenced on all four sets of offending by Judge O’Driscoll.^[2] The Judge imposed cumulative sentences for the GBH offending and aggravated burglary offending, resulting in an end sentence of 10 years’ imprisonment. The end sentence was constructed as follows:^[3]

(a) GBH offending (cumulative) — five years and seven months’ imprisonment.

(b) Aggravated burglary at Wairakei Road (cumulative) — four years and five months’ imprisonment.

(c) Possession of instruments for burglary (concurrent) — nine months’ imprisonment.

(d) Burglary at Odyssey House (concurrent) — 12 months’ imprisonment.

(e) Breach of release conditions (concurrent) — three months’ imprisonment.

• [2] Mr Taylor now appeals against his conviction for aggravated burglary. He also appeals against the total end sentence of 10 years’ imprisonment.^[4]

Appeal against conviction

Facts of the Wairakei Road offending

• [3] At the time of the relevant offending, Mr Taylor was a 27-year-old male of no fixed abode. On 26 August 2018, he burgled a private home in Wairakei Road, Christchurch during daylight hours. While Mr Taylor was outside and in the process of leaving with the stolen property in his backpack, he was confronted by the occupant (the complainant). The complainant grabbed Mr Taylor and removed him from his bicycle. There was a struggle and Mr Taylor was thrown against a glass ranch slider, which shattered, leaving the two men surrounded by broken glass. The struggle continued and, during it, Mr Taylor allegedly grasped a shard of broken glass in his hand and threatened to injure the complainant with it. It is this action which the Crown relied on to charge Mr Taylor with aggravated burglary, on the ground the glass shard constituted a weapon for the purpose of s 232 of the Crimes Act 1961. During the struggle, the complainant sustained a severe laceration to his knee and required hospitalisation. This laceration was not the result of any wounding by Mr Taylor.

Grounds of appeal

• [4] At the hearing Mr Taylor’s counsel, Mr Davis, confirmed that of the five original grounds of appeal only the first is maintained. This ground is based on alleged errors by the trial Judge in allowing a prejudicial photograph of the complainant’s incidental injury to be admitted as evidence and failing to properly direct the jury in relation to the photograph. However, Mr Davis made it clear that the real focus of the conviction appeal is on a new additional ground: namely, trial counsel conduct. He submits defence counsel ran a contradictory scattergun defence (based on three “prongs”) and failed to put the defence case to the complainant, who was not cross‑examined.
• [5] However, we consider defence counsel was faced with a confused and muddled prosecution case that would have made it difficult for her to focus on the real issues. Further, one of the three prongs to the defence case was that, by the time Mr Taylor and the complainant struggled with each other, the burglary was completed and therefore the offending could not be the subject of an aggravated burglary charge. For the reasons provided below, we consider this was a correct analysis of the evidence adduced at trial. Accordingly, we are satisfied the conviction appeal on this charge must be allowed.

The Crown and defence case

• [6] Mr Taylor was initially charged with aggravated burglary (by arming himself with a glass shard), assault with a weapon (the glass shard) and possession of instruments for burglary. The particulars of the aggravated burglary charge were that, “having committed burglary ... [Mr Taylor] used a piece of glass as a weapon”.
• [7] At the commencement of the trial Mr Taylor pleaded guilty to the charge of possession of instruments for burglary. At the same time the Crown charge notice for the aggravated burglary was amended “to reflect the correct wording of s 232(1)(a)” of the Crimes Act.^[5]
• [8] The particulars of the amended charge alleged that “while entering a building ... without authority and while committing burglary in that building, [Mr Taylor] used a piece of glass as a weapon.”
• [9] The Crown opened to the jury on the basis the alleged offending took place when Mr Taylor, who was on Wairakei Road with two screwdrivers, a small hand shovel and a pair of black coloured gloves, approached the property down a long driveway, entered through a gate and jemmied open a window to gain access. Once inside, he grabbed a number of items and loaded them into his backpack. These included an i-Phone, several pairs of sunglasses, a digital camera and a watch.
• [10] In its opening, the Crown referred the jury to the photographs it had of scratch marks to the window Mr Taylor was said to have jemmied open and the evidence of various items of property taken from inside the house (which were found in his backpack outside of the house). The Crown’s case was that the jury could be sure Mr Taylor had entered the complainant’s address without authority and with the intention of committing a crime inside the building, namely theft, which was evidenced by the fact Mr Taylor was found with stolen items.
• [11] The Crown’s case for the offending being an aggravated burglary was that, “during the course of the burglary”, Mr Taylor picked up the glass shard and threatened to stab the complainant. The use of the glass shard was said to have happened while Mr Taylor was outside the house and attempting to flee the property.
• [12] Where the Crown confused matters was in advancing a case that Mr Taylor armed himself with a glass shard “during the course of” the burglary. This was legally incorrect, as we explain later.
• [13] The Crown presented the assault with a weapon charge to the jury on the basis Mr Taylor assaulted the complainant when attempting to flee from the property and, during the course of the assault, he had with him the glass shard, which he intended to use as a weapon. The Crown relied on Mr Taylor’s alleged threat to the complainant — “I’m going to stab you” — to prove this intent.
• [14] The defence opened to the jury on the basis Mr Taylor did not deny that he was at the property or that he attempted to flee the property when he realised the complainant had arrived home. The defence case was there was no aggravated burglary because by the time Mr Taylor was alleged to have picked up the glass shard the burglary had ended. The Crown had not proven the assault with a weapon charge beyond reasonable doubt either, as there was ample evidence to show Mr Taylor picked up the glass shard in self-defence after being assaulted by the complainant.

Why the appeal must be allowed

• [15] Mr Davis was critical in his submissions on appeal of how defence counsel ran the trial, particularly the failure to cross-examine the complainant. However, at the time the trial was conducted, all defence counsel knew of the Crown’s case was what Crown counsel had presented at opening.
• [16] The particulars of the amended charge of aggravated burglary refer to the glass shard being used as a weapon while committing burglary, which is what s 232(1)(a) of the Crimes Act provides. However, burglary is not a continuing offence. Under s 232(1)(a), the offence of burglary is complete once there is an unauthorised entry with intent to commit an imprisonable offence.^[6] Based on the Crown opening, once Mr Taylor jemmied open the window and entered the house, the burglary was complete.
• [17] Because a building includes an enclosed yard,^[7] the burglary may possibly have been complete even earlier, once Mr Taylor passed through the gate on to the property. This was given his own admission he was carrying instruments to commit a burglary. However, the evidence did not specifically address whether the yard surrounding the house could meet the definition of an enclosed yard and the Crown never advanced its case on that basis. On either approach, the burglary was complete by the time Mr Taylor allegedly picked up the glass shard.
• [18] Faced with the Crown’s case it is understandable defence counsel argued the burglary was complete by the time Mr Taylor was said to have grabbed the glass shard. Any use he was said to have made of the glass shard would then have only been relevant to the related charge of assault with a weapon. Here the defence was based on: (a) a denial Mr Taylor had the glass shard at all; or (b) if he did, he was acting in self-defence.
• [19] At the close of the Crown case the assault with a weapon charge was dismissed pursuant to s 147 of the Criminal Procedure Act 2011. But until then this was a live charge that the defence needed to address. The reasons for its dismissal are not available to us.
• [20] The defence elected to call no evidence. The Crown closed its case on the basis the burglary was continuing at the time Mr Taylor and the complainant struggled with each other. This would have placed the defence in an invidious position. Defence counsel closed on the basis that Mr Taylor had no glass shard at all (prong one) or, if he did, it was only after the burglary was complete (prong two) or, if the burglary was ongoing, he only used the glass shard in self-defence (prong three).
• [21] The legal error created by the way the Crown advanced its case was compounded by the Judge in his summing up, where he directed the jury that burglary was a continuing offence and it was a matter for them to determine when it had ended. The Judge correctly directed the jury that “[t]o find Mr Taylor guilty of aggravated burglary [they] must be sure that [he] armed himself with the shard while committing the burglary”. But the Judge later gave wrong directions to the jury when he said:

My direction to you in law is this, that the offence of burglary can be a continuing offence. My direction to you is that the offence of burglary does not cease simply at the time a burglar may have entered the property.

• [22] The jury’s guilty verdict on the charge of aggravated burglary shows that they must have relied on this incorrect direction. The legal error was fundamental; it precluded the jury from reaching a proper verdict based on law. Put shortly, Mr Taylor did not receive a fair trial on this charge and justice has miscarried.
• [23] It follows that the appeal against conviction on the aggravated burglary charge must be allowed and the conviction on that charge must be set aside. However, we consider the appropriate course is to direct pursuant to s 234(2) of the Criminal Procedure Act that a judgment of conviction for burglary contrary to s 231(1)(a) of the Crimes Act be entered. Mr Taylor obviously could have been found guilty at trial of burglary and the jury was plainly satisfied of the facts necessary to prove him guilty of burglary.

Appeal against sentence

• [24] Mr Taylor’s success on the conviction appeal necessarily impacts on his appeal against sentence. The appropriate sentence for the reduced charge of burglary will need to be considered before addressing the sentences imposed on the other charges and the required totality adjustment.
• [25] We begin by describing the four sets of offending that were before the Judge for sentencing.

GBH offending

• [26] Mr Taylor was initially charged with wounding with intent to cause grievous bodily harm.^[8] He pleaded guilty to an amended charge of injuring with intent to cause grievous bodily harm that was supported by an amended summary of facts, which are as set out below.^[9]
• [27] On 9 July 2018 Mr Taylor was in a vehicle on Rattray Street, Riccarton with an associate. He had arranged to meet the complainant in order to carry out a pre‑arranged transaction. The complainant left his home address and approached Mr Taylor who was standing beside the vehicle on the road. As the complainant approached, Mr Taylor revealed he was holding a large steel pole in both hands. Mr Taylor shouted abuse at the complainant and advanced towards him. The complainant turned to leave and was struck on his back by the steel pole; the force of this blow knocked him to the ground. As the complainant lay on the ground Mr Taylor continued to strike him with the steel pole about his head and body. The complainant pleaded with Mr Taylor to stop hitting him, and on at least two occasions attempted to get to his feet and leave. Mr Taylor continued to strike him until his associate shouted to Mr Taylor to get back into the vehicle. They immediately left the scene leaving the complainant on the roadside. As a result of the attack the complainant suffered several broken bones, including both wrists and multiple rib fractures. He sustained lacerations to his head, arms and shoulders and multiple soft tissue injuries to his entire body.
• [28] The complainant was aged 63 at the time of sentencing. He described the injuries as being incredibly painful to the extent they hindered his normal everyday activities. The injuries to his ribs affected his breathing. The complainant described how both his wrists were broken as he had held his hands up to defend his face from blows. The complainant suffered financial costs as a result of the injuries and his mental health and emotional wellbeing were also affected. He required counselling and has rods and pins in place in both arms which will be there for the rest of his life. Other members of the complainant’s family also supplied complainant impact statements indicating the effects and consequences they had seen on the complainant. They described this as a difficult and heart breaking time for the family.

Wairakei Road burglary and possession of instruments for burglary

• [29] We have already described the facts of this offending, which involved a daylight forced-entry burglary, committed when no-one was home and when Mr Taylor could have expected this to be the case. The fact Mr Taylor entered the property while in the possession of instruments to commit a burglary reveals an element of premeditation. He stole small household and personal items of the type that could be readily converted into cash. As we have found, what eventuated between him and Mr Taylor during their struggle occurred after the burglary was complete.

Odyssey House burglary

• [30] Mr Taylor was also sentenced in respect of an earlier burglary of Odyssey House in Greers Road, Christchurch committed on 3 August 2018, to which he pleaded guilty. Odyssey House is a residential drug rehabilitation facility. Shortly prior to this offending, Mr Taylor was subject to release conditions requiring him to complete a residential programme at Odyssey House. He failed to complete this programme and left without consent. Thus, Mr Taylor would have been aware of the set-up and layout at Odyssey House when he burgled it. At that time Mr Taylor had no permission to be there; he entered through a sliding door and took food items and a laptop.

Breach of release conditions

• [31] The last set of offending Mr Taylor was sentenced on was charge of breach of release conditions. This charge related to the fact Mr Taylor left Odyssey House without the consent of the programme facilitators, prior to completing the programme. On 23 March 2018, Mr Taylor was sentenced by Judge Neave for this offending to a two-year sentence of intensive supervision, which was live at the time of the GBH offending, Wairakei Road burglary and Odyssey House burglary.^[10] In light of the further offending, Judge Neave cancelled the intensive supervision order and referred the matter to Judge O’Driscoll for resentencing along with the other sets of charges.

Revised sentence

Pre-sentence report

• [32] Mr Taylor is now 29 years old and was 27 at the time of sentencing. His first court appearance was in the Youth Court in 2007–2008. He has an extensive criminal history, which involves 29 convictions for burglary.
• [33] Two pre-sentence reports were obtained prior to sentencing. These identified drug use, an unhealthy lifestyle balance and a propensity for violence as the key offence-related factors contributing to Mr Taylor’s offending. Mr Taylor was assessed as posing a high risk of reoffending based on his offending history and ongoing dependence on illicit drugs. His offending pattern was described as consistent. However, the harm associated with Mr Taylor’s offending was said to be escalating and was considered high. We agree with those observations. They are borne out by the pattern of the present offending.

GBH offending

• [34] Like the Judge, we propose to treat the GBH offending as the lead charge, given this was the most serious offending.
• [35] The Judge described the GBH offending as “completely gratuitous violence” which left the complainant battered and bleeding on the roadside.^[11] We agree. The attack was violent and unprovoked. It left the complainant seriously injured.
• [36] The Judge referred to the guideline judgment for causing grievous bodily harm in R v Taueki.^[12] He correctly recognised that this judgment referred to sentencing bands based on the offence of causing grievous bodily harm (carrying a maximum available sentence of 14 years’ imprisonment) under s 188(1) of the Crimes Act, whereas, here the charge involved injuring with intent to cause grievous bodily harm under s 189(1) (a 10-year maximum sentence).^[13] Accordingly, some adjustment was required. The Judge found present four of the aggravating factors identified in Taueki, namely: premeditation; the use of a weapon; attack to the head; and the extent of the injuries. The fact Mr Taylor was on a sentence of intensive supervision for breaching prison release conditions at the time of the offending was an additional aggravating factor.^[14]
• [37] The Judge adopted a starting point of seven years’ imprisonment (84 months). A reduction of 17 months’ imprisonment (20 per cent) was made to take account of Mr Taylor’s guilty plea which saved the complainant having to come to Court to give evidence. This left a sentence of five years and seven months’ imprisonment (67 months).
• [38] We agree with the sentencing process the Judge followed. This offending fell towards the upper end of the range of available starting points for this offence. We see no error here and agree with the cumulative sentence the Judge reached on the GBH offending.

Wairakei Road burglary and possession of instruments for burglary

• [39] There is no guideline judgment for burglary. However, burglary of a dwelling‑house at the minor end of the scale can attract starting points ranging from one to two and a half years’ imprisonment.^[15] We consider the element of premeditation (indicated by possession of instruments for burglary), the time of the burglary (daytime), and the small number of relatively low-value items taken place this offending in the lower/middle of the range. Therefore, we consider a starting point of 17 months’ imprisonment is appropriate.
• [40] As noted, Mr Taylor has 29 previous convictions for burglary. He has related convictions including three for being unlawfully in an enclosed yard and four convictions for possessing instruments for burglary. Mr Taylor also has other dishonesty convictions for theft and receiving.
• [41] Mr Taylor has the appearance of a recidivist burglar, although not the type who may be classified as a professional burglar. Mr Taylor’s offending appears to be motivated by his drug habit and lifestyle choices. It is notable that, at the time of the offending, Mr Taylor was of no fixed abode. His offending appears to have been motivated by his need for funds to acquire food and drugs. Some uplift is required to recognise his prior burglary convictions and related offending. We consider a seven‑month uplift appropriate. However, we make no provision for an uplift to account for the possession of instruments for burglary offending as his possession of those instruments has been reflected in the element of premeditation, which influenced the starting point we have adopted.
• [42] This leaves a cumulative sentence of two years’ imprisonment for the Wairakei Road burglary (subject to the uplift below at [43]). We consider that the concurrent sentence of nine months’ imprisonment imposed for the possession of instruments charge should be reduced to six months’ imprisonment.

Odyssey House burglary

• [43] The earlier Odyssey House burglary happened in the same month as the Wairakei Road burglary. We consider concurrent sentences for these burglaries are appropriate. Accordingly, we account for this offending with a six-month uplift to the sentence on the Wairakei Road burglary, taking that later sentence to two years and six months’ imprisonment. We consider that the concurrent sentence of one year’s imprisonment for the Odyssey House burglary imposed by the Judge should be reduced to six months’ imprisonment. This recognises the low-level offending involved and the fact Mr Taylor pleaded guilty to this offending.

Breach of release conditions

• [44] Regarding the breach of release conditions, the Judge imposed a three-month sentence of imprisonment to run concurrently with the sentence for the Wairakei Road burglary.^[16] However, it appears the Judge intended to impose a two‑month sentence for this offending.^[17] We consider this to be the appropriate sentence.

Totality adjustment

• [45] The sentence for the GBH offending (67 months’ imprisonment) is cumulative on the sentence for the Wairakei Road burglary (30 months’ imprisonment). The sentences imposed on the remaining charges — the possession of instruments for burglary, Odyssey House burglary and breach of release conditions — run concurrently with the sentence for the Wairakei Road burglary. This brings the total end sentence to eight years and one month’s imprisonment (97 months). We consider it is appropriate to adjust the two cumulative sentences by 15 per cent to reflect totality, which brings the total end sentence to approximately six years and 10 months’ imprisonment (82 months).
• [46] The revised end sentence of six years and 10 months’ imprisonment is constructed as follows:

(a) GBH offending (cumulative) — four years and nine months’ imprisonment.

(b) Wairakei Road burglary (cumulative) — two years and one month’s imprisonment.

(c) Possession of instruments for burglary (concurrent) — six months’ imprisonment.

(d) Odyssey House burglary (concurrent) — six months’ imprisonment.

(e) Breach of release conditions (concurrent) — two months’ imprisonment.

• [47] The sentences we have arrived at are the result of the successful conviction appeal, which required a corresponding reduction in sentence. It follows that we must also allow the sentence appeal.

Result

• [48] The appeal against conviction on the aggravated burglary charge is allowed. The conviction on that charge is set aside and a conviction for burglary under s 231(1)(a) of the Crimes Act 1961 is substituted.
• [49] The appeal against sentence is allowed. The sentences imposed in the District Court are set aside and the following sentences substituted, reducing the effective end sentence of 10 years’ imprisonment to six years and 10 months’ imprisonment.
• [50] The sentence on the charge of injuring with intent to cause grievous bodily harm is reduced from five years and seven months’ imprisonment to four years and nine months’ imprisonment.
• [51] Mr Taylor is sentenced to two years and one month’s imprisonment on the charge of burglary of the property at Wairakei Road, Christchurch. This is to cumulative on the sentence imposed on the charge of injuring with intent to cause grievous bodily harm.
• [52] The sentence on the charge of possession of instruments for burglary is reduced from nine months’ imprisonment to six months’ imprisonment. This is to run concurrently with the sentence imposed for the Wairakei Road burglary.
• [53] The sentence on the charge of burglary of Odyssey House in Greers Road, Christchurch is reduced from 12 months’ imprisonment to six months’ imprisonment. This is to run concurrently with the sentence imposed for the Wairakei Road burglary.
• [54] The sentence on the charge of breach of release conditions is reduced from three months’ imprisonment to two months’ imprisonment. This is to run concurrently with the sentence imposed for the Wairakei Road burglary.

Solicitors:
Clark Boyce, Christchurch for Appellant
Crown Law Office, Wellington for Respondent

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^[1] Mr Taylor pleaded guilty to a related charge of possessing instruments for burglary at the commencement of the trial. A further related charge of assault with a weapon was dismissed.

^[2] R v Taylor [2019] NZDC 25818 [Sentencing judgment].

^[3] At [48].

^[4] Initially Mr Taylor also appealed against his conviction on the charge of injuring with intent to cause grievous bodily harm, despite having entered a guilty plea to this charge. He complained that the circumstances in which the plea was entered had given rise to a miscarriage of justice. However, his appeal against conviction on this charge was formally abandoned at the hearing.

^[5] R v Taylor DC Christchurch CRI-2019-009-3350, 15 July 2019 (Minute of Judge O’Driscoll) at [2]. We note that, while Mr Taylor was charged under s 232(1)(a), the original wording of “having committed burglary” is found in s 232(1)(b) of the Crimes Act 1961.

^[6] Kahuroa v R [2021] NZCA 39 at [19]; and Larkins v Police [1987] 2 NZLR 282 (HC) at 286.

^[7] Crimes Act, s 231(2).

^[8] Crimes Act, s 188(1).

^[9] Section 189(1).

^[10] Department of Corrections v Taylor [2018] NZDC 5872.

^[11] Sentencing judgment, above n 2, at [9].

^[12] At [11], referring to R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

^[13] At [11].

^[14] At [38]. See also R v Taueki, above n 12, at [31].

^[15] See Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [42]–[44]; and Columbus v R [2008] NZCA 192 at [16].

^[16] Sentencing judgment, above n 2, at [48].

^[17] At [45].