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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 1896
Decision Date: 1 August 2012

CaseChat Overview and Summary

The case of Taylor v Police before the High Court of New Zealand involved Derek John Taylor, who sought leave to appeal his sentence. The respondent, the Police, opposed the application. Taylor had been sentenced to two years and six months in relation to multiple burglary offences. The legal issues before the court were whether the sentencing uplift of 250% for aggravating features from a starting point of one year was wrong in principle, whether the omission of the learned District Court Judge in not defining what was meant by a “significant” uplift was wrong in principle, whether a sentencing uplift of 250% for aggravating features was available to the Court as a matter of law, and what parameters limited the power of a sentencing Judge to increase the penalty for aggravating features. The court considered these questions and concluded that they did not raise genuine questions of law but were rather dependent on the specific facts of the case. The court also considered the issue of the sentencing indication and whether it was unfair to the appellant, granting leave to appeal on the basis of two questions regarding the fairness of the indication and the expectations of counsel.

The court's reasoning was based on the diversity of personal circumstances and the nature of burglary offending, which did not permit a categorical answer to the questions posed. The court acknowledged that there was ample Court of Appeal authority providing guidelines in relation to uplifts, but the sheer diversity of outcome suggested that more proscriptive guidelines could not be sensibly made. The court also considered the fairness of the sentencing indication and the role of counsel in ensuring that defendants were advised of the risks in relying on sentencing indications expressed in general terms. In conclusion, the court granted leave to appeal on the specified questions, allowing Taylor to pursue his appeal to the Court of Appeal.

Orders