Taylor v Police

[2012] NZHC 1896

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2012-425-00008-11 [2012] NZHC 1896

DEREK JOHN TAYLOR

Applicant

v

POLICE

Respondent

Hearing:         27 July 2012 (By Audio Visual Link) Counsel: RGR Eagles for Appellant

E J Riddell for Respondent

Judgment:      1 August 2012

JUDGMENT OF WHATA J

[1]      In my judgment of 21 May 2012, I confirmed the sentence handed down to Mr Taylor, a recidivist offender, of two years and six months in relation to the following offending:

(a)       In September 2011, he unlawfully entered into an enclosed yard.

(b)In November and December 2011 he went onto another property and removed copper piping and pressure valves valued at $400.

(c)       On 20 November 2011 he went to the Queenstown Bible Centre, posed as a builder, claimed a cash machine had taken his card and

asked for money.  He was given $100.

TAYLOR V POLICE HC INV CRI 2012-425-00008-11 [1 August 2012]

(d)Then on 30 December 2011, he entered a members only area of the Lakes  Leisure  Centre  gym,  went  to  open  lockers  and  removed  a wallet and a purse.

[2]      This  sentence  followed  a  presentencing  indication  of  a  starting  point  of

12 months for the burglary together with a warning that there would need to be a

“significant” uplift.

[3]      The further background to this offending is that Mr Taylor has 21 burglary convictions and 213 other dishonesty convictions. Aggravating matters included that Mr Taylor was on release conditions and was on bail while offending.[1]

[1] In my judgment I recorded that Mr Taylor was on parole while offending. This was in error.

[4]      Mr Taylor now seeks leave to appeal to the Court of Appeal.  He raises the following questions:

(a)      Was  a sentencing uplift  of 250% for aggravating features  from  a starting point of one year wrong in principle?

(b)       Was the omission of the learned District Court Judge in not defining

what was meant by a “significant” uplift wrong in principle?

(c)      Was a sentencing uplift of 250% for aggravating features available to the Court as a matter of law?

(d)What parameters limit the power of a sentencing Judge to increase the penalty for aggravating features?

[5]      I must determine whether any of those questions are a question of law and whether they ought to be submitted to the Court of Appeal by reason of their general

or public importance or for any other reason.

Submissions for the appellant

[6]      Mr Eagles for the appellant submits that the questions could be worded as:

(a)       Was a sentencing uplift of 250% for aggravating features available to the Court as a matter of law?

(b)What parameters limit the power of a sentencing Judge to increase the penalty for aggravating features?

[7]      He submits that the excessiveness of the sentencing uplift is frequently a focus of appeals against sentence.  He cites a number of recent cases said to illustrate that appeals have been allowed where the uplift has ranged from anywhere between

25% and 150% of the starting point.  He submits that an uplift of 250% as occurred in the District Court, is an extreme example of an uplift which seems to bear little correlation to the starting point of the sentence.  I take it that the nub of Mr Eagles’ submission is that guidance from the Court of Appeal as to the proper bounds for an uplift in this context would be of significant assistance to sentencing Judges.  More specifically he submits that some guidance over circumstances that might justify an uplift which is a percentage of the starting point might give defendants, counsel and sentencing   Judges   greater   understanding   of   what   uplift   is   appropriate   or inappropriate in the circumstances.

[8]      A related point is that by omitting to define a “significant” uplift, the parties could not have apprehended an uplift in the order of 250% which, it appears on the authorities cited by Mr Eagles is well outside the norm.

Submissions for the police

[9]      Ms  Riddell  for  the  Crown  refers  to  the  guideline  judgment  of  Senior  v

Police,[2]  as moderated by the Court of Appeal judgment in R v Columbus.[3]    In the former, previous convictions for burglary are treated as a component of the starting

[2] Senior v Police (2008) 18 CRNZ 340.

[3] R v Columbus [2008] NZCA 192.

point as well as a personal aggravating factor.  In relation to the latter, it is said that the current offending must predominate and the Court warned that the inclusion of previous convictions in fixing a starting point ran the undue emphasis upon them. Ms Riddell then refers to Jones v R,[4]  a case of a burglary of three homes.   In the District Court the sentencing commenced with a starting point of two years imprisonment.  There were then uplifts of 12 months for the totality of the offending,

and a further six months for offending while subject to release conditions.  A further

18 months was then added to reflect the appellant’s prior offending.  This resulted in an end sentence after a discount of 7%, of four years and seven months.  On appeal the Court of Appeal reduced this to four years and two months, deeming that an uplift of 18 months on a three year starting point was sufficient.

[4] Jones v R [2012] NZCA 273.

[10]     Against the backdrop of this decision, the police submit that:

(a)      The questions posed do not raise questions of law but simply seek to relitigate the assessment of fact.

(b)The  point  is  made  that  it  is  for  counsel  to  bring  to  the  Court’s attention comparable cases for the purposes of the assessment.  It is then available for the relevant Judge to assess an appropriate uplift in light of those cases.

(c)      As to defining parameters of what is significant and for the sentencing power in general, the police submit that personal aggravating factors relating to each offender are very vastly different and in each case a sentencing  Judge  must  exercise  a  discretion  as  to  the  appropriate uplift.

[11]     On the issue of the sentence indication, Ms Riddell argued that I was correct at [16] of my judgment and that any risk of unfairness to the accused was offset by the presence of counsel.   She also emphasised that the indication was given on a

busy day and at the insistence of counsel.  Further and in any event the sentence was

not manifestly unfair.   She accepted however that the correctness of my reasons dealing with unfairness to the defendant gave rise to a legitimate question of law.

Assessment

[12]     I propose to deal first with each of the questions as in stated in the application for leave.   I consider that, having heard argument, a further related issue arises in relation to my reasons for dismissing the complaint about the sentencing indication. I will consider that separately.

Question  1:   Was  a  sentencing  uplift  of  250% for  aggravating  features  from a starting point of one year in this case wrong in principle?

[13]     There are two related problems with this question.   First, there is no tariff starting point for burglary charges, because of the diversity in the nature of burglary offending.   Different Judges may attach different significance to the offending, particularly with cases such as this where there is multiple offending.  The proposed question therefore drives from a false premise that there is a uniform approach to starting point that might then make a “250%” uplift inherently disproportionate and wrong in principle.

[14]     To illustrate the point, another way to have approached a sentencing in this case would have been to add a further six months to the starting point to factor in all of the offending.  If that is done the starting point is 18 months.  An uplift to reflect the other aggravating features by 18 months results in a percentage increase for the uplift of 100%.  Yet exactly the same outcome was reached by me in the High Court applying a 200% uplift.   The percentage change is really a simply factor of the approach to starting point.

[15]     Second, the diversity of personal circumstances does not permit a categorical answer.   I respectfully suggest the Court of Appeal could only provide a broad guidance in light of the specific facts before them.  I alluded to this in my judgment when I referred to the uplift in Columbus of 150%. As I said there, that is not a tariff

judgment but might provide some broad guidance to me for the purposes of an assessment of an uplift for aggravating features in this case.

Question 2:  Was the omission of the learned District Court Judge in not defining

what is meant by a “significant” uplift wrong in principle?

[16]     This question suffers from similar flaws to the first.   What is and is not significant is dependent on the circumstances and this is not a matter capable of resolution as a question of law.   A related issue of whether counsel should have sought clarification is addressed below.

Question 3:  Was a sentencing uplift of 250% for aggravating features available to the Court as a matter of law?

[17]     In my view this replicates the first question and results in the same answer.

Question 4:  What parameters limit the power of a sentencing Judge to increase the penalties for aggravating features?

[18]     This is in effect seeking a guideline judgment from the Court of Appeal.  In my view there is ample Court of Appeal authority providing guidelines in relation to uplifts, as aptly illustrated by the number of cases cited by counsel and the case cited by the police.  The sheer diversity of outcome also suggests that more proscriptive guidelines cannot be sensibly made.

[19]     Accordingly,  I do not consider that the questions as posed raise genuine questions of law.  They largely drive from the facts of this case and whether there was an improper finding based on those facts.

[20]     For completeness, I acknowledge an error in my judgment where I record that the defendant was on parole.  He was on release conditions.  This does not materially alter my decision.  In this regard I also consider it is apt for me to note that as the appellate  authorities  asseverate  the  critical  issue  is  whether  the  end  point  is manifestly excessive, not the method of arriving at it.  In my judgment I elected to frame the sentence in light of the argument presented to me and in particular in the

reliance  placed  on  R  v  Columbus.    There  were  many other  ways  to  splice  the assessment with varying approaches to starting point and totality.  It seems to me the focus must squarely be on the end result.  In light of the raft of cases presented to me, a sentence of two years and six months is not outside the frame of sentences available for this type of offending, and in light of the aggravating circumstances pertaining to it and to the offender.

Was I correct to dismiss the complaint about the sentencing indication?

[21]     In  my  judgment  I  rejected  the  complaint  based  on  the  confluence  of  a sentencing indication that the uplift will be “significant” and then the imposition of an uplift of 250% (or two and half years).  I did so for the following reasons:

[16]      Mr Eagles has raised a concern about the effect of the sentencing indication.  An uplift of 250% on a starting point of one year might have attracted a stronger adjective than “significant” as I have indicated.  But it was available to counsel to seek clarity from the Court as to what was meant by significant.   In addition, counsel properly appraised of the authorities, including R v Columbus should have expected an uplift in the order of 18 months to two years, including the potential for the application of the totality or cumulative sentencing principles.   In those circumstances, I am not satisfied that the sentencing indication ought to affect my view on whether or not the uplift was manifestly excessive.

[22]     Ms Riddell accepted, correctly in my view, that whether my reasons at [16] were correct, gives rise to legitimate issues of law and public interest.  The issues touch on the question of fairness to the accused, and whether in the circumstances the accused was unfairly prejudiced by an indication that the uplift would be “significant”. Mr Eagles indicated that the appellant may not have elected to plead guilty had he known this meant an uplift of 250%.  The issues also bear on the role of counsel and the extent to which the Court ought to rely on counsel to ensure that defendants are advised of the risks to them in relying on sentencing indications expressed in general terms.  Finally, resolution of the issue may provide guidance to this Court and the District Court in relation to sentencing indications.

[23]     Accordingly I grant leave to the appellant to pursue the following questions in the Court of Appeal:

(a)       Did the High Court err at [16] by having regard to the ability of counsel to seek clarity on what was meant by significant?

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

[24]     An affirmative resolution of either of those questions will then require an assessment of whether any unfairness arose.

[25] Leave to appeal is allowed on the questions specified at [23].

Solicitors:

Eagles, Eagles & Redpath, Invercargill, for Applicant
Preston Russell, Invercargill, for Respondent