Taylor v Police

[2025] NZHC 2894

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-198

[2025] NZHC 2894

JOSEPH TAYLOR

v

NEW ZEALAND POLICE

Hearing:

2 October 2025

Counsel:

K Paima for Appellant

G Collett for Respondent

Judgment:

2 October 2025

ORAL JUDGMENT OF GENDALL J

[Sentence appeal]

Introduction

[1]    The appellant Mr Joseph Taylor was sentenced to two years and six months’ imprisonment having pleaded guilty to possession of a cannabis pipe,1 possession of instruments for burglary,2 possession of a psychoactive substance,3 burglary (2x),4 escape from Police custody,5 unlawfully taking a bicycle (3x),6 shoplifting (under

$500) (2x),7 failure to answer Police bail,8 and breach of community work.9

1      Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3)—maximum penalty one year imprisonment.

2      Crimes Act 1961, s 233(1)(a)—maximum penalty three years’ imprisonment.

3      Psychoactive Substances Act 2013, ss 71(1) and 71(3)—maximum penalty $500 fine.

4      Crimes Act, s 231(1)(a)—maximum penalty 10 years’ imprisonment.

5      Crimes Act, s 120(c)—maximum penalty five years’ imprisonment.

6      Crimes Act, s 226(1)—maximum penalty seven years’ imprisonment.

7      Crimes Act, ss 219 and 223(d)—maximum penalty three months’ imprisonment.

8      Bail Act 2000, s 24—maximum penalty three months’ imprisonment or $1,000 fine.

9      Sentencing Act 2002, s 71(1)(a)—maximum penalty three months’ imprisonment or $1,000 fine.

TAYLOR v NEW ZEALAND POLICE [2025] NZHC 2894 [2 October 2025]

[2]    On appeal, he contends that the Judge erred in not allowing for discrete discounts for remorse and background factors. Had the Judge applied those discounts, a short-term sentence would have been available which Mr Taylor contends should then be converted to home detention. Mr Taylor also suggests that the Judge erred mathematically in not applying other discounts to the adjusted starting point.

Facts

[3]    Turning to the factual background, at 7.34 pm on 7 November 2024, Mr Taylor was on Hereford Street in Christchurch with an associate. The associate cut a lock off a mountain bike that was locked to a public bike stand. Mr Taylor took the bike and rode away on it.

[4]    At 10.25 pm on 4 February 2025, Mr Taylor was together with an associate in Cathedral Square. He climbed the rear fence into the carpark of a law firm, opened a locked pedestrian gate for his associate and cut the locks on two bikes, one valued at

$9,500 and one valued at $4,000. Mr Taylor and his associate rode away on the bikes. For this, he was charged with burglary.

[5]    Mr Taylor was also charged with one representative charge of shoplifting, encompassing the following offending which occurred at the same New World store:

(a)First, on 12 January, Mr Taylor took Cadbury chocolates worth $16.47.

(b)Second, on 16 March at 11.41 am, Mr Taylor took deli food worth

$13.97.

(c)Third, on 16 March at 12.52 pm, Mr Taylor returned and took various items worth $54.

(d)Fourth, on 16 March at 3.49 pm, Mr Taylor returned once again and took various items worth $137.97.

(e)Lastly, on 27 March, Mr Taylor took a butterscotch caramel worth

$4.69.

[6]    Next, on 21 March at 7.44 pm, Mr Taylor walked into the victim’s house while he slept. He picked up his laptop, wallet and some poker chips before he was disturbed by the victim. Mr Taylor ran from the address, dropping the laptop and poker chips. He took the wallet. Mr Taylor was located by Police in the carpark of a bar and advised he was under arrest. He ran from Police up the driveway and into the bar, where he was arrested. He told Police that he did not remember how he got inside the victim’s home but he did remember taking the items. He explained to Police that he was high on synthetic cannabis at the time.

[7]    Then on 3 April, Mr Taylor was outside the Christchurch District Court. He was smoking cannabis from a small, improvised bong and carrying a small backpack. He was arrested and his backpack searched. Police located two small zip lock bags containing 0.75 grams of synthetic cannabis, a set of bolt cutters and a screwdriver.

[8]    Lastly on 6 April, Mr Taylor cut the lock off a bike valued at $3,500 and rode away on it. On 7 April, Mr Taylor entered a public bike storage room, cut the lock off another bike valued at $3,000 and rode away with it. On 16 April, Mr Taylor entered the Ballantynes department store and took a perfume valued at $295 without paying.

District Court decision

[9]    Turning now to the District Court decision, there Judge Couch identified the burglaries as the lead charges and considered the gravity of both was relatively serious. The Judge took a starting point of 26 months’ imprisonment.

[10]   For the unlawful takings of  bicycles,  the  Judge  took  a  starting  point  of 18 months’ imprisonment. He then applied a two-month uplift for escaping custody, a four-month uplift for possession of instruments for burglary, and three months for the failure to answer bail, the Misuse of Drugs Act charges, the breach of community work, and  the  three  theft  charges.  The  combined  starting  point  was  therefore 53 months. The Judge reduced that to 45 months’ imprisonment to account for totality, noting the overlap between the burglaries and the unlawful takings.

[11]   The starting point was uplifted by eight per cent as Mr Taylor was subject to sentence when the offending occurred. He was also on bail when he took two of the

bicycles. A 25 per cent reduction was afforded for guilty plea and eight per cent for youth, as Mr Taylor was aged between 20 and 21 when the offending occurred. On the basis of the material in the pre-sentence report, the Judge identified that Mr Taylor had a “serious drug habit” which was a “major driver of [his] offending” as the property taken was sold to buy drugs. A further eight per cent reduction was applied. The Judge arrived then at an end sentence of 30 months’ imprisonment.

Principles on appeal

[12]   Turning now to the principles on this appeal. This is a first appeal against sentence under s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 As the Court of Appeal stated in Tutakangahau v R, quoting the lower Court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.11 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles, and I refer to the Court of Appeal decision in Ripia v R.12

Submissions

Appellant’s submissions

[13]   Turning now to the appellant’s submissions before me, Mr Paima, for the appellant, maintained that the Judge ought to have provided a further 10 per cent discount to reflect the nexus between Mr Taylor’s offending and his “harrowing and challenging beginnings to life”, namely his estrangement from his parents, violence, drug use, his abuse in foster care, gangs and homelessness. As to remorse, Mr Paima says that a modest discount should have been made, having regard to the pre-sentence report writer’s opinion that Mr Taylor showed a “good level of remorse”, and a letter

10     Criminal Procedure Act 2011, ss 250(2) and 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

12     Ripia v R [2011] NZCA 101 at [15].

Mr Taylor wrote to the sentencing Judge where he offered his apologies to the victims of his offending.

Respondent’s submissions

[14]   For the respondent, Ms Collett, submits that the starting point for the burglary charges was at the lower end of the available range, which would offset any issues this Court may take with the remainder of the sentence. The credit given to recognise addiction was also said to be generous, given the lack of information before the Court. It was recorded in the He Waka Tapu report that Mr Taylor was “vague and inconsistent with his reporting” of methamphetamine use.

[15]   As for the identified mathematical error in the sentence, Ms Collett accepts an error was made and submits that “while the traditional mathematical calculations were not applied…this did not make the end sentence manifestly excessive”.

Analysis

Was the starting point for the burglary charges at the lower end of the available range?

[16]   Turning now to my analysis in this matter. The first issue is, was the starting point for the burglary charges at the lower end of the available range.

[17]   The main thrust of the Crown submissions before me was that the starting point on the burglary charges (not challenged on appeal) was generous and therefore, even if further discounts ought to have been applied, the overall sentence could not be manifestly excessive. Having reviewed the authorities to a point, I agree.

[18]In Arahanga v R, the Court of Appeal stated:13

[78] This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years and six months’ imprisonment.

13     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 (footnotes omitted).

[19]   In Nguyen v R, the Court of Appeal stated that it is necessary for the Court to “consider the combination of factors surrounding the offending conduct” as follows:14

[17]      … In burglary cases, these include the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.

[18]      The range of circumstances in which the offence of burglary can be committed is such that no tariff can be fixed. Entry into private homes generally will have an emotional impact giving rise to a sense of violation and insecurity for the owners that may not arise in the case of commercial premises. The value of goods stolen from commercial premises may be higher.

[20]   Mr Taylor burgled both a dwelling house (the laptop burglary) and a commercial premises (the bike shed of a law firm). In the residential burglary, the victim was asleep although it was the evening when Mr Taylor entered the house (so the fact the victim was asleep was not necessarily expected by Mr Taylor). There was a risk of confrontation which materialised and resulted in Mr Taylor fleeing the house, dropping most of the goods he had taken. No degree of planning or sophistication is evident in the way the burglary was carried out and it was not suggested Mr Taylor physically broke into the dwelling. The summary of facts is silent as to how Mr Taylor entered the house. However, I am inclined to assume he entered through an open or unlocked door. I consider a sentence of 18–22 months would have been open to the Judge on this charge alone, on the basis of the indication in Arahanga. The following two cases are, in my view, also of assistance, where the offending was slightly more serious than Mr Taylor’s and attracted starting points of two years’ imprisonment on appeal:

(a)Stepanicic v R:15 the appellant entered two residential dwellings there (one by force, one through an unlocked door) in the early hours of the morning and took a significant amount of valuable items (including jewellery and electronics). The Court of Appeal allowed the sentence appeal and substituted sentences of two years’ imprisonment on each charge of burglary.

14     R v Nguyen CA 110-01, 2 July 2001.

15     Stepanicic v R [2015] NZCA 211.

(b)Tafengatoto v Police:16 the offender pulled the slats out of a window to enter a residential dwelling in the early hours of the morning as the victim slept, and removed $12,500 of electronics, jewellery and a wallet. There, his Honour Justice Palmer held that the starting point ought to have been two years’ imprisonment.17

[21]   As to the burglary of the bikes from the yard, the value of goods taken was higher, and the location was a business during the day meaning there was a high risk of confrontation. It was aggravating that a second person was involved, and Mr Taylor assisted that person to enter the premises. Although it was a burglary of a business rather than a residential dwelling, the bikes taken were still the personal property of people who worked there rather than commercial stock. The burglary was again however not particularly sophisticated and there was no damage to the premises. The following two cases, in my view, are of assistance here:

(a)R v Columbus:18 the appellant forced open the door of a residential garage during the afternoon and took a mountain bike. On appeal, the Court of Appeal suggested a starting point of no more than one year imprisonment, noting the opportunistic nature of the burglary and that the bike was recovered that day.19

(b)Elers v R:20 the appellant and two others climbed over the fence of a business at night and removed batteries worth $150 from a yard. On appeal, her Honour  Justice  Grice  held  that  the  starting  point  of  16 months’ imprisonment was “well within the range available”.21

[22]   Mr Taylor’s offending here, as I see it, could have easily attracted a similar starting point to the decision in Elers. The property taken was of much higher value, and there was a higher risk of confrontation given the burglary happened during business hours when staff would have been present. The offending was more serious

16     Tafengatoto v Police [2018] NZHC 2452.

17 At [9].

18     R v Columbus [2008] NZCA 192.

19 At [16].

20     Elers v R [2018] NZHC 497.

21 At [15].

than in the Columbus decision due to the involvement of an accomplice and the higher risk of confrontation.

[23]   Therefore, it would appear the starting point of 26 months’ imprisonment for the two burglaries was generous. On my assessment, a starting point in the region of 32–34 months’ imprisonment across the two burglaries would have been justified. Although the starting point itself is not at issue on appeal, that necessarily affects the assessment of whether, overall, the sentence was manifestly excessive.

Should the Judge have applied a further discount for background factors?

[24]   The next matter I consider is should the Judge have applied a further discount for background factors.

[25]   Although a s 27 report was not available at sentencing, the He Waka Tapu report contains information about Mr Taylor’s upbringing, as does the pre-sentence report which was completed with the assistance of an interview with Mr Taylor’s grandmother. Mr Taylor reported that he experienced violence by his father from the age of seven before he entered foster care at eight years old. He claimed to have experienced abuse in that care and reported running away from care at 12 years old. Mr Taylor reported that he spent some time on the streets before “being given shelter and a home by a gang”. He began using substances including methamphetamine, and lived with various family members but each time had to leave due to his substance use. He variously reported use of cannabis, methamphetamine, synthetic cannabis, and NOS.

[26]   As to his drug addiction, for which Judge Couch afforded him an eight per cent discount, the report records:

Joseph alluded to using methamphetamine when he was older and that his use was an ounce every two-three days right up to current remand. Joseph seemed very vague and inconsistent with his reporting and it is difficult to ascertain amounts and times he used methamphetamine.

…

Joseph reported first using synthetic cannabis three years ago…he states he used one ounce a week consistently right up to three weeks before remand.

[27]   The report writer concluded that Mr Taylor met eight out of 11 criteria for an Other Use Disorder, meaning his disorder was “severe in early remission in a controlled environment”. Although the report writer did not specify as such, it is clear from the report this is in relation to his use of synthetic cannabis. Although the Crown suggests that the discount given for addiction was “generous” given the inconsistency of Mr Taylor’s reporting of methamphetamine use, it is clear from the Judge’s sentencing notes that the discount was given for his synthetic cannabis use, which is plainly his most serious addiction.

[28]The Court of Appeal in Carr v R remarked:22

… where a cultural report provided under s 27 of the Sentencing Act contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse including by whanau members, unemployment, educational underachievement and violence as features of the offender’s upbringing such matters ought to be taken into account in sentencing.

[29]   The He Waka Tapu report, although not presented as a s 27 report, covered some of the material  specified  in  s 27(1)  of  the  Act.  The  connection  between Mr Taylor’s background, his addiction to synthetic cannabis and the offending, are self-evident. Mr Taylor was exposed to violence, gang membership, and drugs from  a young age. Evidently that led to various addictions which in turn led to Mr Taylor living a transient lifestyle, described by the pre-sentence report writer as “chaotic and drug-fuelled”, funded by dishonesty offending. I consider that the Judge could have applied a modest 10 per cent reduction to recognise the causal connection between Mr Taylor’s background and the offending. However, that conclusion is tempered by the conclusion I reached on the starting point. As against the lenient starting point, despite the lack of reduction for background factors, I am satisfied at one level that the overall sentence was not manifestly excessive.

Should the Judge have applied a further discount for remorse?

[30]   The next matter I consider is, should the Judge have applied a further discount for remorse.

22     Carr v R [2020] NZCA 357 at [60].

[31]   Genuine remorse can be reflected by a discount at sentencing, and I refer to the Court of Appeal decision in Sweeney.23 The necessary assessment is evaluative and a question of fact  and judgment.24   The pre-sentence report writer considered that    Mr Taylor presented with “a good level of remorse and stated that he wanted to apologise to the victims of his offending”. In a letter written to the Judge before sentencing, Mr Taylor expressed that he would “like to extend [his] most humble of ap[o]logies to all peoples surrounding my offending”. It is unclear whether any attempt was made at restorative justice and Mr Taylor was clearly not in a position to make reparation.

[32]   Beyond his expression that he wished to apologise, it is somewhat difficult to see where Mr Taylor has shown significant and genuine remorse here. It is unclear perhaps what led the pre-sentence report writer to conclude that he had.  Further,   Mr Taylor, it seems at one level, did attempt to shift responsibility for some of the offending to his unidentified co-offender. The pre-sentence report in this regard records:

He intimated that a lot of the decision making on what to steal came from his co-offender and that he only received a fraction of the proceeds from the stolen goods.

[33]   Overall and on balance here, I conclude that the Judge did not err in declining to apply a discrete discount for remorse.

Mathematical error

[34]The next matter I consider is one of mathematical error.

[35]   The Judge’s sentencing methodology however, in the judgment under appeal, was in error. The Judge ought to have applied the eight per cent uplift for offending while subject to sentence and on bail to reach an adjusted starting point of 48.6 months before reducing that by 41 per cent for mitigating factors. Instead, the Judge applied the uplift (which was a stage one factor) in the same step as the mitigating factors (which were stage two) resulting in a slightly higher end sentence.

23     Sentencing Act, s 9(2)(f).

24     Sweeney v R [2023] NZCA 417 at [18].

[36]   Had the Judge followed that approach as dictated by the Court of Appeal decision in Moses,25 the end sentence would have been 28.6 months. On appeal, it is appropriate to correct that error and round the end sentence down to 28 months. Although the Crown contends that the sentence was not manifestly excessive despite this error, I consider the Judge made a material error in the calculation of the end sentence such that he did not impose a sentence he intended to, and I refer to the decision of Tutakangahau for that.26

Result

[37]I turn now to my result.

[38]   As a result of all of this, the appeal is allowed but only in part. The sentence of two years and six months’ imprisonment is quashed and substituted with a sentence of two years and four months’ imprisonment.27 Otherwise, this appeal is dismissed.

Gendall J

Solicitors:

Crown Solicitors, Christchurch

cc:        K Paima, Barrister, Christchurch

25     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

26     Tutakangahau v R, above n 11, at [36].

27     The District Court sentences of one year three months for each of the two burglary charges (served cumulatively) is now to be one year two months for each (served cumulatively).