Taylor v Police - [2012] NZHC 1096

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2012-425-000008-11 [2012] NZHC 1096

DEREK JOHN TAYLOR
Appellant

v

POLICE
Respondent

Hearing: 21 May 2012

Counsel: RGR Eagles for Appellant
MJ Thomas and R Donnelly for Respondent

Judgment: 21 May 2012

JUDGMENT OF WHATA J

[1] Mr Taylor is a recidivist offender. He has 21 burglary convictions and 213 other dishonesty convictions, prior to the present charges. In the period September
2011 to December 2011, the district of Queenstown Lakes became a focal point for

Mr Taylor’s unlawful activity:

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

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

TAYLOR V POLICE HC INV CRI 2012-425-000008-11 [21 May 2012]

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.

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

[2] In the Court below, the Judge considered that the burglary charge was the lead charge. The Judge applied a starting point of 12 months and uplifted that by two and a half years to three and a half years. The uplift reflected what he considered to be aggravating features, including that Mr Taylor was on parole at the time of all offending, released on bail 24 hours before the burglary, the number and seriousness of the previous burglary convictions.

[3] A discount of 25% was then allowed for the appellant’s guilty plea with the final sentence of two and a half years. Other sentences were relatively minor with periods of one month, two months, and two months respectively of imprisonment, all to be served concurrently.

[4] Mr Taylor now appeals sentence.

[5] Mr Eagles, for Mr Taylor, contends that the uplift of some 250% was manifestly excessive. He says that the following aspects are significant when considering the end sentence including:

(a) Mr Taylor was equivocating on whether to plead guilty to the burglary charge, on the basis that access to the leisure centre was available to the public and he did not enter a secure part of the premises. Prior to entering the guilty plea he sought a sentencing indication whereupon the Judge stated:

... 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.

Following that indication Mr Taylor entered a plea of guilty to the burglary charge.

(b)Mr Eagles submits that an uplift of 250% or two and a half years on a starting point of one year is more…

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 1096
Decision Date: 21 May 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Derek John Taylor, appeals against the sentence imposed by the District Court. The appellant was convicted of various charges, including burglary, theft, and deception. The respondent, the Police, opposed the appeal. The primary issue before the court was whether the sentence imposed by the District Court was manifestly excessive. Specifically, the appellant's counsel argued that the uplift of two and a half years on a starting point of one year was manifestly excessive. In contrast, the Crown contended that the sentence was not manifestly excessive, considering the appellant's extensive criminal history and the nature of the offences.

The court considered the appropriate framework for assessing the sentence, taking into account the starting point, aggravating and mitigating factors. The court acknowledged that while the uplift of two and a half years was severe, it was not manifestly excessive. The court applied the Taueki framework and relevant authorities, including R v Columbus, to objectively assess the sentence. The court found that the appellant's personal circumstances, including being on parole at the time of the offences and his extensive criminal history, warranted a significant uplift. The court determined that a two-year uplift was appropriate, resulting in an end sentence of two years and three months. The court concluded that the sentence was excessive but not manifestly so, given the appellant's disregard for the property and privacy rights of others.

The court dismissed the appeal, finding that the sentence imposed by the District Court was not manifestly excessive. The court further noted that the sentencing indication provided by the District Court Judge was not misleading, as counsel should have sought clarification and properly appraised of the authorities. The court found no error of manifest substance in the sentence imposed.

Orders