Taylor v Police
[2024] NZHC 2880
•4 October 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2024-454-000029
[2024] NZHC 2880
BETWEEN MATTHEW TAYLOR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 September 2024 Counsel:
C J Nicholls for Appellant
A M Barham for Respondent
Judgment:
4 October 2024
JUDGMENT OF RADICH J
[1] Matthew Taylor has been convicted of a raft of charges for disparate offending that occurred over the period from November 2022 to January 2024. The particular charges are these: one charge of using forged documents to obtain pecuniary advantage,1 three charges of assault with a weapon,2 two charges of receiving, one relating to property valued over $1,0003 and one relating to property valued under
$500,4 one charge of escaping Police custody,5 one charge of possessing instruments for burglary,6 one charge of possessing a weapon in a public place,7 one charge of possessing ammunition,8 two charges of possessing a firearm or explosive,9 two
1 Crimes Act 1961, s 257(1)(a); maximum penalty ten years’ imprisonment.
2 Section 202C; maximum penalty five years’ imprisonment.
3 Sections 246 and 247(a); maximum penalty seven years’ imprisonment.
4 Sections 246 and 247(c); maximum penalty three months’ imprisonment.
5 Section 120; maximum penalty five years’ imprisonment.
6 Section 233(1)(a); maximum penalty three years’ imprisonment.
7 Section 202A(4)(a); maximum penalty three years’ imprisonment.
8 Arms Act 1983, s 22B; maximum penalty $10,000 fine.
9 Section 45(1); maximum penalty four years’ imprisonment.
TAYLOR v NZ POLICE [2024] NZHC 2880 [4 October 2024]
charges of possessing drug utensils,10 three charges of driving dangerously,11 one charge of driving with excess breath alcohol (third or subsequent),12 two charges of failing to remain stopped in a vehicle for Police,13 three charges of failing to stop to ascertain injury after an accident,14 one charge of leaving a place of detainment,15 two charges of resisting Police,16 and one charge of assault.17
[2] On 1 May 2024, Mr Taylor was sentenced to five years and six months’ imprisonment.18 He was disqualified from driving for two years and one month and ordered to pay a total of $7,680.21 in reparation for two of the charges of assault with a weapon.
[3] Mr Taylor brings this appeal from his sentence, saying the Judge set the starting point too high (and in the course of doing so should not have adopted the using a document charge as the lead offence), imposed excessive uplifts for previous offending and committing offences while on bail, and gave insufficient credit for various factors personal to him. The end sentence reached, he says, was manifestly excessive.
The offending
[4] Across seven days in November 2022, Mr Taylor used forged BP petrol station gift cards to make eight purchases, obtaining goods valued at $2,131.67.
[5] On 18 May 2023, Mr Taylor was driving a car when stopped by police. A search of the car was initiated and he was detained. Before the search was completed, he drove away. These events led to the charges of failing to remain stopped (third or subsequent) and leaving a place of detainment.
10 Misuse of Drugs Act 1975, ss 13(1)(a) and (3); maximum penalty one year’s imprisonment.
11 Land Transport Act 1998, ss 35(1)(b); maximum penalty three months’ imprisonment.
12 Section 56(1) and (4); maximum penalty two years’ imprisonment.
13 Sections 52A(1)(b), (5) and (6) and 114; maximum penalty three months’ imprisonment.
14 Section 35(1)(c); maximum penalty three months’ imprisonment.
15 Search and Surveillance Act 2012, s 176(b); maximum penalty three months’ imprisonment.
16 Summary Offences Act 1981, s 23; maximum penalty six months’ imprisonment.
17 Section 9; maximum penalty six months’ imprisonment.
18 Police v Taylor [2024] NZDC 9622 (Judge Couch).
[6] On 16 July 2023, Mr Taylor was stopped by police. Police informed him that he was under arrest for breaching his bail conditions. A police officer reached into his car to turn it off. Mr Taylor grabbed his hand and turned the car on, attempting to flee. Mr Taylor was subdued by Police who removed him from the car before searching it. Inside, they found 20 rounds of ammunition. These events led to the charges of possessing ammunition, possessing a methamphetamine pipe, failing to remain stopped, and resisting Police.
[7] On 25 September 2023, Mr Taylor went to the house of his ex-partner, where he had lived previously. On the street outside the house, he punched a male associate of his ex-partner in the face with a closed fist, sparking a fight. Police attended. Police were asked by Mr Taylor’s ex-partner to remove a weapon from among Mr Taylor’s possessions still inside the house. Police removed a nail gun that Mr Taylor had modified to discharge ammunition rounds, with an ammunition round inside the chamber. These events led to charges of common assault, possession of a firearm and possession of an explosive.
[8] On 8 January 2024, Mr Taylor was driving a stolen car near Levin. He was drunk at the time. He was driving dangerously. One tyre had come off. He crossed the centreline frequently and was travelling 60 kmph over the speed limit of 80 kmph. In total, 20 separate complaints were received about Mr Taylor’s manner of driving. Multiple vehicles were forced to take evasive action. Mr Taylor drove into three of the victims intentionally. He drove intentionally into the back of the first victim’s car twice while stuck behind him, before driving off at speed down the highway. He went on to drive directly and intentionally into a parked vehicle at speed, causing moderate damage. The second victim, who was inside the car, received whiplash and could not work for eight days following. Mr Taylor drove directly into the third victim’s car. He did not stop despite causing these collisions. These events led to the three charges of driving dangerously, the three charges of assault with a weapon (the vehicle being the weapon), and the three charges of failing to stop to ascertain injury.
[9] When the police arrived at the scene and told Mr Taylor that he was under arrest, he resisted and ran away, leading to the charges of resisting police and escaping custody. When police located him, they found him to be in possession of a
screwdriver, 15 lock-picking instruments, and syringes and needles for administering drugs. These discoveries lead to a charge of possessing an offensive weapon, a charge of possessing instruments for burglary and a charge of possessing utensils for drugs.
[10] Upon testing, the police found Mr Taylor to have been driving with an excess breath alcohol concentration of 840 micrograms of alcohol per litre of breath.
[11]The car he was driving was found to have been stolen. It was valued at
$10,000. Mr Taylor knew it was stolen because he put false registration plates on it and had used a screwdriver to hot wire it. Stolen registration plates valued at $40 were found in the car. These facts led to the two receiving charges.
The sentencing decision
[12] The Judge imposed a starting point (adjusted for totality) of five years and eight months’ imprisonment. He arrived at the starting point by imposing starting points cumulatively for different offending, which he grouped into categories, and then by adding the starting points together before making an adjustment for totality. The starting points he imposed for each group of offending were as follows:
(a)two years for what he took as the lead charge, using forged documents for pecuniary advantage;
(b)14 months for the three firearms charges arising out of materials found in Mr Taylor’s possession on 16 July 2023 and on 25 September 2023, and for the assault on 25 September 2023 – made up of 12 months for the firearms charges and an uplift of two months for the assault;
(c)18 months for the charge of receiving property (the car) valued at over
$1,000 incurred on 8 January 2024;
(d)10 months for the three charges of assault with a weapon (the car), all incurred on 8 January 2024;
(e)10 months for driving with excess breath alcohol (third or subsequent offence) on 8 January 2024;
(f)five months for the three charges of dangerous driving on 8 January 2024;
(g)six months for the charge of possessing instruments for burglary, resulting from instruments found in Mr Taylor’s possession on 8 January 2024;
(h)eight months, as an uplift, for the balance of the offending described in
[1] above.19
[13] That led, the Judge said, to a combined starting point of six years and five months’ imprisonment. The Judge went on to reduce that starting point to five years and eight months’ imprisonment to reflect the totality of Mr Taylor’s offending, equivalent to a discount of nine months or roughly 12 per cent.
[14] The Judge’s arithmetic here was wrong. The true value of the starting points he adopted is seven years and 11 months’ imprisonment, rather than six years and five months’ imprisonment. The error means that he gave an effective discount of 27 months, or roughly 28 per cent, for totality.20
[15] The Judge uplifted the adjusted starting point by 10 per cent to reflect the fact that Mr Taylor’s offending since June 2023 occurred while he was on bail for the other offending. He uplifted it by a further five percent for Mr Taylor’s previous convictions, particularly for his previous dishonesty offending, dangerous or reckless driving offences and resisting police.
19 One charge of receiving property valued under $500, one charge of escaping police custody, one charge of possessing a weapon in a public place, two charges of possessing drug utensils, two charges of failing to remain stopped in a vehicle for police, three charges of failing to stop to ascertain injury after an accident, one charge of leaving a place of detainment and two charges of resisting police.
20 I have proceeded on the basis that the totality-adjusted starting point of five years and eight months was in fact what the Judge had intended, despite the error in arithmetic. It is a position which favours the appellant.
[16] Finally, the Judge applied a 20 per cent credit for Mr Taylor’s guilty pleas. He said the pleas did not justify a full 25 per cent reduction because, originally, Mr Taylor had entered not guilty pleas on the first of the charges that were brought against him.
[17] Applying the 15 per cent uplifts and 20 per cent credit to the adjusted starting point, the Judge reached an end sentence of five years and six months. Again, I observe that the Judge’s arithmetic here was wrong. Applying uplifts totalling 15 per cent and discounts totalling 20 per cent to the adjusted starting point of five years and eight months – effectively a five per cent discount from the adjusted starting point – should have led to an end sentence of five years and four months’ imprisonment, rounding down, or an end sentence of five years and five months’ imprisonment, rounding up. If I had, at the end of the day, found that the sentence imposed was not manifestly excessive, I would at least have needed to correct this error for Mr Taylor.21
Approach on appeal
[18] In Tutakangahau v R the Court of Appeal confirmed that a successful sentence appeal under s 250(2) of the Criminal Procedure Act requires both the identification of an error and the need for the appeal court to be satisfied that a different sentence “should” be imposed.22 The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.23 Rather, the appellant must show there is a material error before the court goes on to form its own view of the appropriate sentence.24 The court will not generally intervene unless a sentence is manifestly excessive25 and whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.26
[19]As noted in Johnson v New Zealand Police, the error principle recognises:27
… that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important
21 An arithmetical error, to a defendant’s detriment, must be corrected even if on appeal it is found that the sentence imposed was within the available range – Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ferris v Bromley v R [2017] NZCA 115 at [15].
22 At [26] and [27].
23 At [30].
24 At [30].
25 At [35].
26 At [30]–[36].
27 Johnson v New Zealand Police [2023] NZHC 3748.
to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.
Parties’ positions
[20]The primary grounds for Mr Taylor’s appeal are these:
(a)It is said that the Judge went about assessing the starting point in a misconceived way. Rather than taking the forged document charges as the lead offence and then adding on, in a cumulative way, starting points for nine other groups of offending, the Judge should, it is said, have used the 8 January events as the starting point. Assessed collectively, it is said, the events (receiving the stolen car, causing assault with it, driving with an excess blood alcohol limit for third or subsequent and dangerous driving) should have been considered holistically and would, together, warrant a starting point of two and a half years rather than the total of just on four years given by the Judge (when adding his starting points for each of those offences together). It is said that the forged document charge was of a low level and would not warrant more than a three-month uplift, as with the firearms charges. A three-year starting point should, it is said, have been applied – four years at most but certainly not five years and eight months.
(b)It is said that uplifts for offending on bail and for the previous offending should have been 10 per cent at most.
(c)It is said that the guilty plea discount needed to have been 25 per cent, rather than 20 per cent.
(d)It is said that a 10 per cent discount was warranted to recognise Mr Taylor’s addiction and that a further 10 per cent was warranted to recognise his difficult upbringing and cultural factors.
[21] A five-and-a-half-year sentence for what Mr Nicholls referred to as being essentially “fraud and driving charges” was seen to be wholly inappropriate.
[22]Ms Barham said that, whichever approach is taken in setting the starting point
– the approach adopted by the Judge or the approach promoted by Mr Nicholls (either of which would be appropriate) – the Crown disagrees fundamentally over Mr Nicholls’ assessment of the starting point level on the basis that it minimises the seriousness of the different categories of offending. Just as one example, driving into multiple vehicles at speed and while drunk (and not for the first time) is significant offending. It was only, it was said, a matter of good fortune that no one was seriously injured. The starting point, it was said, was not manifestly excessive.
[23] Ms Barham said that the 15 per cent uplifts were not too high. She said that, given that both parties supported a 25 per cent discount for the guilty plea in the District Court, there was no reason that it could not have been given but that, insofar as the other discounts sought by Mr Taylor are concerned, there was insufficient evidence before the District Court – as is the case before this Court – to enable discounts to be given. For example, the Court would be making an assumption about a connection between cultural factors and the offending. While, she said, there may be a connection, the evidence does not enable a finding to be made to that effect. While Ms Barham did not resist a connection being possible, she did not regard there to be enough material before the Court to enable the Crown to concede that the two 10 per cent discounts sought were warranted.
Starting point
[24] I begin by considering the approach the Judge took to setting the starting point, in the context of Mr Nicholls’ submission, described in [20](a)] above.
[25] Section 84 of the Sentencing Act provides that it will generally be appropriate for a concurrent sentencing approach to be taken offences of a similar kind, and which are a connected series of offences.28 Section 85 of the Act provides that cumulative sentences must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.29 In practice, that means that not only should sentencing Judges consider each offence or set of offences individually, they should
28 Sentencing Act, s 84(2).
29 Section 85(2).
also assess the offender’s overall culpability and determine the sentence that is appropriate for the totality of the conduct.30 As the Supreme Court has observed, the effect of s 85 is that “the effective sentence of imprisonment should be the same irrespective of whether the sentences are structured cumulatively or concurrently”.31 It follows that on appeal the Court will not insist that the total sentence be arrived at in any particular way.
[26] Having said that, there are some risks in proceeding as the Judge did here – through adding together a long series of starting points in a cumulative way. It can carry a greater risk of adopting an unduly high starting point.32 The risks can be heightened when proceeding cumulatively where different offences relate to a connected series of events. There is the potential for a Court to lose sight of the need for the total period of imprisonment to be in proportion to the overall gravity of the offending.33
[27] In order to ensure that risks of that sort have not been realised here (to such an extent as to have produced a manifestly excessive result), I will approach the starting point exercise by reference to the categories of similar offending as I see them, rather than those used by the Judge. The categories I will use are these:
(a)The driving offending occurring on 8 January 2024 (excluding the receiving offending).
(b)The receiving offending, which is dissimilar to the driving charges, even though it enabled them.
(c)The firearms offending and the assault on 25 September 2023.
(d)The fraud offending in November 2022.
30 R v Bradley [1979] 2 NZLR 262 (CA); R v Dodd [2013] NZCA 270 at [32]–[33].
31 Booth v R [2016] NZSC 127, [2017] 1 NZLR 22 at n 17 and [46].
32 Thompson v Police [2023] NZHC 3229 at [48].
33 Haywood v R [2015] NZCA 551; Ogden v R [2016] NZCA 214 at [64].
(e)The remaining charges, consisting mostly of the possession of burglary utensils and drug utensils, and various charges involving failing to do as instructed by police.
Driving offences
Assault with a weapon
[28] The Judge took a starting point of 10 months’ imprisonment for the three charges of assault with a weapon (the car) arising from the 8 January 2024 events. These charges should in my view be taken as the lead offending. The Crown says that the starting point here was lenient and could have, acceptably, been 18 to 20 months – referring to Hinton v Police.34
[29] Having regard to Hinton (a 12-month starting point in a deliberate collision with a motorcyclist), to Manuel v Police35 and Waa v Police36 (18-month starting points where the victim in each case was a police officer and where, in one case, the appellant had driven at the victim more than once) and Roberts-Tuahuru v Police37 (an 18 months’ starting point for assault with a car and an uplift of six months for dangerous driving), I see a starting point here of 18 months on the most serious of the three assaults,38 with an uplift of six months to reflect the two further charges, would have been the highest appropriate starting point.39 In saying that, I take into account the aggravating factors that are present here, being the use of a potentially lethal weapon, physical contact with one of the victims and the failure to stop to ascertain injury.
Driving with excess blood alcohol
[30] The Judge took a starting point of 10 months’ imprisonment for the charge of driving with excess blood alcohol on 8 January 2024 for a third and subsequent time. The maximum penalty for the offence is two years’ imprisonment. The Crown says
34 Hinton v Police [2015] NZHC 560.
35 Manuel v Police [2014] NZHC 2648.
36 Waa v Police HC Masterton CRI-2004-435-2, 21 May 2004.
37 Roberts-Tuahuru v Police [2019] NZHC 1444.
38 The instance in which Mr Taylor drove into one vehicle twice.
39 As compared with a sentence I might have imposed if undertaking the exercise at first instance.
that the starting point was lenient and could easily have been 18 to 20 months’ imprisonment.
[31] Having regard to the aggravating and mitigating factors for offending such as this, as set out by Whata J in Samson v Police,40 and discussed by Cull J in Deadman v Police,41 an 18 to 20-month period of imprisonment as a starting point for this offending does warrant consideration. Mr Taylor was over three times the legal limit and (putting to one side the assault with a weapon charges) was driving in an extremely dangerous way.
[32] However, a totality adjustment is needed at this sub-category level to take account of the way in which this offence sits alongside the assault with a weapon offending. With that in mind, a maximum uplift of 10 months is in my view appropriate.
Dangerous driving
[33] The Judge imposed a starting point of five months for the three charges of dangerous driving on 8 January 2024. Because the dangerous driving is something I have factored into my assessment of the seriousness of the excess breath alcohol concentration offence above, I do not see it as appropriate to add a separate uplift for the dangerous driving offences.
Receiving
[34] The Judge imposed a starting point of 18 months for the charge of receiving property valued at over $1,000. The charge related to the theft of the car involved in the 8 January 2024 offending.
[35] There is no tariff case for receiving offending. However, the first step is to assess culpability which involves considering the value of the goods, the duration of the offending, the number of charges, the existence or otherwise of a commercial
40 Samson v Police [2015] NZHC 748 at [15].
41 Deadman v Police [2021] NZHC 1406 at [21]–[22].
element and the closeness of the relationship between burglar and receiver.42 The culpability here was relatively low. It was a one-off incident with no commercial element. But the value of vehicle was relatively high, at $10,000.
[36] Recent cases demonstrate that a starting point for a lead charge of receiving involving only one incident can result in a starting point of between 12 and 18 months’ imprisonment.43 In assessing an uplift in the context of the previous charges, I see an uplift of eight months as being at the top end of the appropriate available range.
Using forged documents
[37] The Judge took the charge of using forged documents as the lead offending and applied a starting point of two years. Counsel for both parties see the starting point for this offence as being too high. Mr Nicholls says that this offending should not appropriately have been taken as the lead offending and the starting point for it should have been between three and six months. The Crown says that a 12-month starting point would have been appropriate.
[38] There is no guidance case for dishonesty offending such as using forged documents but the Court of Appeal has discussed culpability in cases such as this, saying:44
Culpability is not to be measured solely or even primarily by reference to the amount at issue. Other aggravating factors are relevant. In particular, we refer to the multiplicity of offending, its duration, the degree of premeditation, the vulnerability of the victim and breach of trust. A composite evaluation of all these factors is required.
42 R v Tua [2014] NZHC 3049 at [15], citing Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [21] and [22].
43 For example, in Henry v Police [2021] NZHC 573 a starting point of 18 months was upheld in relation the theft of a camera worth over $60,000; and in Carpenter v Police [2021] NZHC 3545 a starting point of 12 months was upheld on appeal in relation to one event of receiving a car worth
$15,000, and in Ellis v R [2012] NZCA 513 an 18-month starting point was upheld by the Court of Appeal in relation to receiving property worth $5,000 including a connection with the party who had carried out the burglary – the Court referring to the starting point as “stern” but within the expected range.
44 Rako v R [2015] NZCA 463 at [10] (footnotes omitted), citing R v Varjan CA97/03, 26 June 2003 at [22].
[39] Mr Taylor used forged BP gift cards on multiple occasions over a seven-day period, purchasing goods to a value of $2,131.67. Predetermination was involved but the victim was not vulnerable.
[40] I do see the starting point taken by the Judge as being too stern. It is at odds with the Court of Appeal’s decision in Rako v R in which an 18-month starting point was used for 11 charges of using a document to obtain roughly $1,800 from a tourist whom Mr Rako had befriended. The Court saw a starting point for that offending as in the 12 to 18 month range.45
[41] While there are similarities in the offending and in the value of the goods obtained, the vulnerability and breach of trust elements are not present here. Again, as an uplift to the previous offending, eight months would in my view be at the highest end of the appropriate range.
Possession of firearms and assault
[42] The Judge used a starting point of 14 months for the events on 25 September when Mr Taylor punched a man known to his previous partner in the face and following which the modified nail gun was found by police at the property at which the assault took place. The offending includes, as well, the rounds of ammunition in Mr Taylor’s car when police stopped him on 16 July 2023.
[43] The charge of possessing 20 rounds of ammunition has a maximum penalty of a fine only. It cannot result in a custodial sentence. The assessment must be limited then to the assault and firearms charges.
[44] Mr Nicholls submits an appropriate starting point for this offending would have been three months, having regard to totality but Ms Barham says that the starting point for the firearms and assault offending was lenient.
[45] I do not see the starting point taken by the Judge for this offending as having been lenient. There is no tariff case for possession of firearms and it is rare to find
45 At [9].
cases in which possession of a firearm was the lead offence. However, the Court of Appeal, in Campbell v R, observed:46
… possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment.
[46] However, the circumstances here are quite different. The nail gun was not in Mr Taylor’s possession. When the police were called to the property of his ex-partner on 25 September following the assault, the ex-partner asked the police to remove the nail gun, which had been stored in the garage. At one level, the modification to the nail gun, and the fact that it was loaded, can lead to an inference that it was to be used for a criminal purpose.47 But the circumstances I have described see the offending here as being at a lower level. As standalone offending, I cannot see it as warranting a starting point of more than 12 months. An uplift of one or two months to reflect the common assault charge is appropriate. That charge carries a maximum penalty of one year’s imprisonment. Here, there was a single punch thrown to the face. It is at the lower end of seriousness although it does involve an attack to the head.48
[47] I see the 14-month starting point imposed by the Judge for this offending (excluding the possession of ammunition charges) as being the maximum uplift that was appropriate for it.
Other offending
[48] The Judge imposed a starting point of six months for the charge of possessing instruments for burglary, relating to instruments found in Mr Taylor’s possession on 8 January 2024. He then imposed an uplift of eight months for the balance of the offending.49
46 Campbell v R [2022] NZCA 579 at [18], citing Rawiri v R [2021] NZHC 1573 at [33]; R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [41]; Torea v R [2011] NZCA 96 at [13]—[14]; Herewini v Police [2014] NZHC 2396 at [26]; and Bowring v Police [2021] NZHC 3198 at [17]—[22].
47 Herewini v Police, above n 46, at [27].
48 By reference, for example, to Kerr v Police [2023] NZHC 2235 where a five-month starting point was upheld where the defendant had punched a victim (a corrections officer) multiple times, once in the face.
49 As described in n 19 above.
[49] Looking first at the possession of instruments for burglary, as Ms Barham said, the six-month uplift was stern and that, if this offending had been sentenced in isolation, it is unlikely to have resulted in a sentence of imprisonment at all.
[50] Offending of this type is normally sentenced alongside charges of burglary or theft and does not appear to be a factor that has justified an independent uplift in those circumstances.50 It is often seen as an aggravating factor to such charges at most. I do not see an uplift as being appropriate here.
[51] Looking at the balance of the offending, I see the charge of receiving licence plates as being related to the charge of receiving the vehicle. It does not warrant a separate uplift. In a related way, Mr Taylor appeared to have the screwdriver (the source of the possession a weapon charge) to enable him to receive the vehicle. It should not be the subject of a second uplift. Similarly, I have accounted for the charges of failing to stop to ascertain injury in assessing a starting point for the charges of assault with a blunt weapon (the car).
[52] That leaves the charges of possession drug utensils, resisting police, failing to remain stopped for police or otherwise escaping detainment by police. I do not think the charges of possession drug utensils can justify an uplift from an already high starting point in the interests of totality. The other charges might justify a modest uplift of two months altogether considering that there were three separate occasions on which Mr Taylor resisted police instructions, resulting in six charges.
Net position and totality
[53] On the basis of the assessment I have conducted in [28]–[52], I see a term of imprisonment of 66 months (or five years and six months) as being the maximum starting point appropriate on the assault with a weapon charge as the lead offending, assessing the others with uplifts, before adjusting for totality in relation to the whole of the offending.
50 See, for example, Connell-McDowell v Police [2019] NZHC 3370; Singh v Police [2016] NZHC 1739.
[54] While totality adjustments have been made, as I say, within subsets of related charges, I do need to stand back now and assess totality as a whole. In broad terms, we are concerned here with three primary sets of offending: the driving events on 8 January, the use of the forged BP card and the assault and firearm charges. The driving charges relate to events that were relatively extreme and, as I have explained, I see the Judge’s approach to them as being lenient. However, the other offending is relatively low-level. The gift card charges, while predetermined and deliberate, were at quite a different level to that assessed by the Judge and the assault and firearm charges were modest also and distinguishable from cases for the reasons I have given.
[55] I see a further reduction of four months as being necessary to ensure Mr Taylor’s end sentence is not wholly out of proportion to the gravity of his offending. That leaves the maximum starting point I see as being available as five years and two months’ imprisonment having regard to the offending on a totality basis.
Uplifts
[56] It is said for Mr Taylor that the 10 per cent uplift to reflect Mr Taylor’s offending while on bail and the five per cent uplift applied to reflect Mr Taylor’s previous convictions for dishonesty, dangerous or reckless driving and resisting police were too high. The total uplifts should, it is said, not exceed 10 per cent. The Crown sees the uplifts as having been available to the Judge.
[57] Offending while on bail is an aggravating factor justifying an uplift.51 It does not amount to double counting, but is a reflection of the offender’s disregard for court processes and orders.52 Similarly, relevant previous convictions are an aggravating factor that can justify an uplift from the starting point.53
[58] Uplifts of 20 per cent or more are not uncommon for a combination of previous convictions and offending while on bail.54
51 Sentencing Act 2002, s 9(c).
52 Clunie v R [2013] NZCA 110. It is not uncommon for an uplift to reflect a breach of bail to be applied across all offending and not to be limited to the offending committed while on bail.
53 Sentencing Act, s 9(j).
54 See, for example, Montgomery v R [2024] NZHC 2628 (22 per cent uplifts for relevant previous convictions and offending while on bail, decreased to 16 per cent on appeal) and Cave v Police
[59] The fact that Mr Taylor committed the most serious of the offences under consideration while on bail is a serious aggravating factor. His criminal history for driving offences is extensive, with 17 occurrences of driving-related convictions involving, in most cases, multiple offending within each occurrence. Frequently, Mr Taylor’s offending has involved the combination of dangerous driving, failing to stop, excess breath alcohol and disqualified driving. The previous occurrences have been relatively consistent between 1995 and 2016. They are coupled with an extensive history of dishonesty offending, with convictions between 2016 and 2022.
[60] Notwithstanding the fact that Mr Taylor’s previous convictions for driving with excess breath alcohol have been considered in assessing the starting point for that offence, I see an overall uplift of 15 per cent for these aggravating factors as being stern, but available to the Judge on the basis of the cases to which I have referred.
Discounts
Guilty pleas
[61] The Judge applied a 20 per cent reduction for Mr Taylor’s guilty pleas on the basis that guilty pleas on all the charges had followed the entry of not guilty pleas on those which had been charged at an earlier point in time. However, the Crown accepted in the District Court that a 25 per cent discount was appropriate. As Mr Nicholls said, proceedings did not reach the case review stage on the not guilty pleas that had been entered earlier.
[62] I accept that, given the relevant timings of the entry of the guilty plea, a full 25 per cent credit should have been given.
Upbringing, cultural factors and addiction
[63] Counsel for Mr Taylor at his sentencing sought a discount for the trauma he had suffered during his upbringing in State care, as described in the pre-sentence
[2023] NZHC 361 (23 per cent uplifts for previous convictions and offending while on bail, upheld on appeal).
report. The Judge made no mention of that application or of factors such as these. I can only assume that this was an oversight on the part of the Judge.
[64] On appeal, Mr Nicholls says that a 10 per cent discount is due for the contribution made to Mr Taylor’s offending, not only through his upbringing in State care but from cultural factors I come on to describe. It is said that, in addition, a 10 per cent discount was warranted for Mr Taylor’s addiction to methamphetamine, which is said to have been a driver of his offending.
[65] While the pre-sentence report is not detailed, it does provide sufficient information about Mr Taylor’s upbringing in State care and about his addiction to methamphetamine to enable the points to be considered. Mr Nicholls goes further than that. He says that there were material defects in the sentencing exercise. The information about Mr Taylor’s methamphetamine addiction in the pre-sentence report is such that, he says, in the absence of counsel for Mr Taylor in the District Court seeking an alcohol and drug report, the Judge ought to have ordered a report.
[66] Moreover, it is said, the pre-sentence report refers to Mr Taylor’s whakapapa, on both his mother’s and his father’s side, being to Ngāti Porou such that cultural factors should have been assessed also. With reference to the terms of the 2008 Deed of Settlement between the Crown and Ngāti Porou, Mr Nicholls says that it is clear that Mr Taylor’s iwi has suffered loss of land, economic base, mana and cultural connections over generations such that Mr Taylor must have been affected as a result.
[67] Ms Barham observes that the point was not raised in the District Court and that there was a lack of information before the sentencing Judge on the topic. Ms Barham put it, fairly, on the basis that the Crown does not say that a connection between the deprivation that Mr Taylor’s iwi has suffered and his offending does not exist but that, rather, in absence of better information the Court would be making an assumption. Although, it is said, that assumption might be right, there is insufficient information to enable the Crown to concede the point.
[68] As the Supreme Court said in Berkland v R, a background factor that is personal to an offender is relevant to sentencing where it helps to explain why the offender has
come to offend in some rational way.55 Relevant background factors can include those that have contributed causatively to offending – such as intergenerational sources of offending or more diffuse drivers – rather than only those that have been operative or proximate causes. However, there is a point at which background factors no longer assist in explaining offending.56
[69] I am satisfied that the information that is available to the Court provides a credible account of matters that might have impaired Mr Taylor’s choices and diminished his moral culpabilities such as to establish a causative contribution to his offending. It seems sufficiently clear that his methamphetamine addiction contributed to his offending. And it is sufficiently clear that his particularly disadvantaged childhood caused the roots to be emplanted which, in turn, has seen Mr Taylor develop in the way that he has. An even deeper contribution to Mr Taylor’s root system may well be a dislocation from his culture through breaches of the sort that led to Ngāti Porou’s treaty settlement. I do accept the point made for the Crown that information is limited and that, as the Supreme Court said in Berkland, migratory effects of historical deprivation must be based upon explanatory factors and not ethnic assumptions.57
[70] However, I see the cultural disconnection as being apparent. In my view, it sits behind Mr Taylor’s particularly difficult upbringing and the trauma he suffered while in State care, together with his methamphetamine addiction which followed. These factors together are drivers of his offending in that they have contributed causatively to it. Taking a holistic approach, I assess the minimum appropriate credit for personal background factors to be 10 per cent.
Manifestly excessive?
[71] Because this appeal has required the Judge’s approach to multiple convictions and to uplifts and discounts to be considered, the assessment has been complex. But it has been important to consider each relevant part of the sentencing exercise carefully, and from first principles. The exercise reveals a material difference between
55 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
56 At [110].
57 At [110].
the starting point adopted by the Judge and the highest appropriate starting point that I see as available, together with material differences in the assessment of relevant discounts. The Judge’s starting point, adjusted for totality, was 68 months. I see the maximum appropriate starting point as being 62 months. The Judge applied a 20 per cent discount whereas I see discounts totalling 35 per cent as being the minimum appropriate.
[72] Accordingly, I see the maximum final sentence available to the Judge was a term of imprisonment of three years and four months. The difference between that term and the term imposed by the Judge of five years and six months is such that a conclusion that the sentence imposed was manifestly excessive is unavoidable.
Outcome
[73] The appeal is allowed. The term of imprisonment imposed by the Judge of five years and six months is quashed and is replaced with a term of imprisonment of three years and four months.
[74] The three year and four months term is imposed on the assault with a weapon charges.
[75] On each of the other charges, the sentences imposed in [24] of the Judge’s decision are replaced with the following – each of which is to be served concurrently:
(a)on the charge of using forged documents to obtain a pecuniary advantage, eight months’ imprisonment;
(b)on each of the Arms Act charges arising out of the 25 September events, a sentence of 10 months’ imprisonment;
(c)on the excess breath alcohol (third or subsequent) charge, a sentence of 10 months’ imprisonment;
(d)on the escaping custody and possessing instruments for burglary charges, sentences of two months’ imprisonment on each;
(e)on each of the charges of dangerous driving, possession of utensils and possession of an offensive weapon, sentences of imprisonment of three months each;
(f)on each of the charges of failing to ascertain injury, sentences of imprisonment of two months each;
(g)on the charge of possession of ammunition on 16 July, a conviction and discharge; and
(h)on each of the other charges, terms of imprisonment of one month.
[76]The sentences imposed by the Judge in [25]–[28] of the 1 May 2024 decision
– disqualification, destruction and reparation – are not the subject of appeal and remain in place.
Radich J
Solicitors/Counsel:
Chris Nicholls, Lower Hutt for Appellant
Crown Solicitor, Palmerston North for Respondent
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