Taylor v Police

[2023] NZHC 568

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-215

[2023] NZHC 568

BETWEEN

TAMATI JOHN TAYLOR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

13 December 2023

Appearances:

D B Iremonger for Appellant

W J S Mohammed for Respondent

Judgment:

18 December 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 18 December 2023 at 9.45 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

TAYLOR v NEW ZEALAND POLICE [2023] NZHC 568 [18 December 2023]

Introduction

[1]    Tamati Taylor pleaded guilty to one charge of intimidation,1 one charge of wilful  damage,2    and  one  charge  of  possessing  an  offensive  weapon.3   On      6 October 2023, he was sentenced to one year, one month and 14 days’ imprisonment with an order to pay $400 in reparation.4 Mr Taylor appeals that decision on the following grounds:

(a)the overall starting point was excessive;

(b)the uplift of 10 per cent was excessive;

(c)the wilful damage charge should have been sentenced concurrently;

(d)the District Court Judge erred in not acknowledging remorse; and

(e)the Judge erred in denying the appellant leave to apply for home detention under s 80I of Sentencing Act 2002.

Facts

[2]    Mr Taylor and the victim lived in adjoining flats in Edgeware, Christchurch. On 24 March 2023, Mr Taylor went to the victim’s flat and asked her whether she wanted him to do her groceries for her as she was unable to leave her address. She declined this offer, and Mr Taylor became angry and aggressive, demanding that she pay back money he said she owed to an associate of theirs. Mr Taylor said that if she did not give him the money by 12 pm, he would return and smash her windows with a golf club. Mr Taylor then went to his flat and returned with a crossbow in his hand and walked towards the victim. He pointed it at her and said “I’ll shoot you with this”. The victim moved away from Mr Taylor. As she did so, he said “you better pay or you

1      Summary Offences Act 1981, s 21(1)(a): maximum penalty three months’ imprisonment or a

$2,000 fine.

2      Section 11(1)(a): maximum penalty three months’ imprisonment or a $2,000 fine.

3      Crimes Act 1961, s 202A(4)(b): maximum penalty three years’ imprisonment.

4      New Zealand Police v Taylor [2023] NZDC 22220.

know what will happen”. This incident gave rise to the charges of intimidation and possession of an offensive weapon.

[3]    At around 12.48 am on 16 August 2023, Mr Taylor was at a different victim’s address socialising. The occupiers of the house asked him to leave. He initially left but then returned shortly after and began yelling at the victim and others from the front of the property, calling them “pussies” and requesting they come out and fight him. Mr Taylor smashed windows at the property. The victim was intimidated by Mr Taylor and fled out the back door of the property and over the fence to get away from him. This gave rise to the charge of wilful damage.

District Court decision

[4]    The District Court Judge considered the charge of possession of an offensive weapon as the lead charge. He said this offending was serious, as the crossbow was a dangerous weapon that was capable of killing someone. It was pointed at the victim and accompanied by threats to shoot her with it. Mr Taylor’s intention was clearly to use the weapon to intimidate the victim, and it is apparent from the victim impact statement that he did intimidate her. She believed that he would shoot her and this was reinforced by his earlier threat to break the windows. The Judge also noted that Mr Taylor had no right to possess the crossbow as he was under a protection order.

[5]    The Judge adopted a starting point of 16 months’ imprisonment for the totality of the offending that day, being the charge of possession of an offensive weapon and the charge of intimidation. The Judge then uplifted this by two months to reflect the wilful damage offending committed in August.

[6]    In terms of personal aggravating factors, the Judge noted the August offending occurred while Mr Taylor was on bail. He also has 11 previous convictions for assault or threatening behaviour and one of possession of an offensive weapon, albeit that conviction was dated. There were numerous other convictions, including breaches of Court orders. The Judge applied an uplift of 10 per cent for those two factors.

[7]    As for personal mitigating factors, the Judge noted that Mr Taylor pleaded guilty, but this was on the day of the judge-alone  trial.   However, this was when the

more serious charges were dropped. The Judge allowed a 20 per cent discount. The Judge was also provided with a s 27 report. He accepted that Mr Taylor’s upbringing was inadequate and inappropriate in many respects, left him ill-equipped for adult life, and allowed anti-social attitudes and criminal behaviours to become normalised. The Judge accepted that these factors still  affect  Mr Taylor  so  allowed  a discount  of 15 per cent.

[8]This resulted in an end sentence of 13 and a half months’ imprisonment.

[9]    The Judge then considered whether a sentence of supervision, as suggested by Mr Taylor’s lawyer, was an appropriate sentence. He held it was not having regard to the purposes and principles of sentencing, including holding the offender accountable for the harm done, deterrence and parity. The Judge said he was not satisfied any sentence short of imprisonment would achieve the purposes of the Sentencing Act and be consistent with the principles of that Act. Leave to apply for a substituted sentence was denied.

Principles on appeal

[10]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 The Court of Appeal supported the lower Court’s decision in Tutakangahau v R: “[a] court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7

5      Criminal Procedure Act 2011, s 250(2) and 250(3).

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

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

Submissions

Appellant’s submissions

[11]   Mr Iremonger, for Mr Taylor, says that the starting point of 16 months’ imprisonment for the charges of possession of an offensive weapon and intimidation was in itself excessive and then was uplifted by two months on the wilful damage charge, which itself carries a maximum penalty of three months. He also says that the uplift for previous convictions and offending on bail was excessive because Mr Taylor has not appeared in court for over two years. Mr Iremonger further says that any uplift for the wilful damage charge should have been concurrent. He also submits that the Judge placed too much emphasis on charges that had been withdrawn.

[12]   Mr Iremonger also submits the Judge erred in not mentioning, and not providing a discount for, the letters of remorse Mr Taylor put before the court. He further submits that the Judge erred by not allowing leave to apply to substitute the sentence because the Judge did not refer to the pre-sentence report, which noted that a home detention address was available.

Respondent’s submissions

[13]   Mr Mohammed, for the Police, submits the sentence was the least restrictive one appropriate in the circumstances. He submits that the Judge did not err in taking into account the charges that had been withdrawn but rather the Judge took into account the circumstances around the offending, including the threats to the victim.

[14]   Mr Mohammed acknowledges that the Judge erred in saying that Mr Taylor was prohibited from possessing a crossbow because of the protection order, but he says the appeal does not turn on this point and it was not a factor that resulted in a manifestly excessive sentence.

[15]   Mr Mohammed says that a starting point of 16 months could be considered at the lower end of the available range for offending with serious aggravating factors, including the element of home invasion, the vulnerability of the victim, and the seriousness of the weapon (noting that a crossbow falls towards the more serious end

of the spectrum of offensive weapons as firearms are usually dealt with under the Arms Act 1983).

[16]   In terms of personal factors, Mr Mohammed submits that it was appropriate Mr Taylor did not receive a discount for remorse in this case. He submits the letters tendered were “too little, too late” and notes that Mr Taylor is a recidivist offender.

[17]   Mr Mohammed submits the Judge did not have jurisdiction to allow for leave to substitute the sentence under s 80I because he was not satisfied that any sentence short of imprisonment would have achieved the purposes of the Sentencing Act.    Mr Mohammed submits this was correct because Mr Taylor’s offending presented significant risks to the community, he is a recidivist offender, he has a history of breaching court orders and sentences, and the purposes of accountability and deterrence justify such a sentence.

Starting point

[18]   I consider the starting point of 16 months’ imprisonment for the possession of an offensive weapon charge and the intimidation charge was within range. While the charge of threatening to kill was withdrawn, the fact that Mr Taylor threatened the victim with the crossbow is clearly relevant to the circumstances of the offending and therefore to sentence. Mr Mohammed cites the case of Hughes v New Zealand Police where Venning J adopted a starting point of 12 months where Mr Hughes had a taser, an air pistol and two knives.8 While there were more weapons in that case, the risk involved with the possession was less as there was no direct targeting of another person, so supporting the higher starting point adopted here. I also note that starting points for possession of firearms and ammunition regularly reach 18 months’ imprisonment where the weapon is not targeted at someone but found in someone’s possession.9 While the maximum penalty for possession of firearms is one year higher and the weapons are clearly more serious,10 the fact this potentially lethal weapon was pointed at the victim with an accompanying threat, reinforces my view that a starting point of 16 months for this offending is appropriate.

8      Hughes v New Zealand Police [2018] NZHC 1807 at [9] and [27]–[28].

9      See Pue v R [2014] NZCA 273; and Smith v New Zealand Police [2014] NZHC 2196 at [14].

10     Arms Act 1983, s 45(1).

[19]   I accept, as Mr Mohammed notes, the Judge erred in suggesting that Mr Taylor was prohibited from possessing a crossbow because he was subject to a protection order. Under s 98(1)(a) of the Family Violence Act 2018, a standard condition of a protection order is that the respondent must not possess any weapon as defined in s 8 of that Act. Weapon is then defined exhaustively in reference to terms used in the Arms Act. The Arms Act defines a firearm as meaning “anything from which any shot

… or other projectile can be discharged by force of explosive”.11    A crossbow is

therefore not included as it does not use an explosive for the arrow to be discharged. Regardless of the fact that that aggravating factor is not present, I do not consider the starting point is out of range.

[20]   Mr Iremonger’s submissions in relation to the starting point also take issue with the uplift for the wilful damage charge. The maximum sentence for a charge of wilful damage is three months’ imprisonment. In this case, Mr Taylor smashed the windows of the victim’s house. It appears that he did that without a weapon. However, this occurred at night and clearly intimidated the victim.

[21]   In Davis v New Zealand Police, Nation J uplifted the sentence of 10 months’ imprisonment by one month to reflect Mr Davis smashing in a window with a meat cleaver.12 In Swinton v New Zealand Police, Wylie J added an uplift of two months for two charges of wilful damage for throwing a large brake disc at a wall, smashing a hole in the wall lining, at his partner’s house and for kicking the victim’s vehicle leaving large dents in the passenger door vehicle.13 While in this case, having regard to totality, I might have been inclined to uplift by only one month, I cannot say the two month uplift was out of range or excessive in the circumstances.

[22]   Mr Iremonger also submits the uplift for the wilful damage charge should be a concurrent with the lead offending. While the uplift was added cumulatively, the sentence imposed was a concurrent sentence. This is appropriate given the wilful damage occurred on a separate occasion and if the sentence was not imposed as a

11     Arms Act, s 2(1) definition of “firearm” para (a).

12     Davis v New Zealand Police [2022] NZHC 3014 at [38].

13     Swinton v New Zealand Police [2014] NZHC 298 at [25].

cumulative uplift there would be effectively no sentence on the wilful damage charge, which would not appropriately reflect the totality of the offending.

Personal aggravating and mitigating factors

[23]   Counsel for Mr Taylor also challenges the uplift for previous offending and for offending on bail and the lack of a discount for remorse.

[24]   I consider the 10 per cent uplift for previous offending and offending on bail was appropriate. Mr Taylor has three previous convictions for wilful damage from 2019, 2003 and 1999, one conviction for threatening language (family violence) from 2019 and one conviction for possessing an offensive weapon (other) from 2000. He also has eight convictions for assault (including two charges of robbery including assault) spanning from 2000 to 2020.

[25]   A sentence can be uplifted for previous convictions where they bear upon character and culpability, or they indicate a predilection to offend in a particular way, or there is a need to protect society by imposing a deterrent sentence.14 In this case, Mr Taylor’s record shows that Mr Taylor has a predilection to resort to anger and violent offending. I acknowledge that some of the convictions were dated and there had been gaps in the offending, particularly in the two years before the present offending. However, looked at in totality there is a continuing pattern of offending involving anger and violence which continues with these charges. In addition, the offending while on bail is also an aggravating personal factor. I consider the uplift imposed was within range and appropriate.

[26]   In terms of the letters of remorse, I accept that the Judge did not refer to these in sentencing. However, I am not satisfied that a discount for remorse is appropriate in these circumstances. Remorse is a question of fact and judgement. The offender bears the onus of showing that any remorse is genuine. Remorse does not need to be extraordinary to earn a discount, but something more than bare acceptance of the responsibility inherent in the guilty plea is required.15 In this case, Mr Taylor filed

14     Reedy v New Zealand Police [2015] NZHC 1069 at [19].

15     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].

two letters, one to the Court and one to the victim of the possession of an offensive weapon and intimidation charges. The letter to the Court fails to demonstrate an acceptance of responsibility for the offending as Mr Taylor continues to deny the facts that he has pleaded guilty to. That letter says:

I swear to the courts that I only removed the bow from the lounge where the argument took place & tossed it into a bedroom as it felt intimidating to even myself being present. I didn’t mean for it to seem threatening as I’m sure the owner hadn’t placed it there to threaten me.

[27]   The letter to the victim is more accepting of responsibility, saying he had no right to speak to her like he did make her feel threatened or uncomfortable. He said that he hopes she can find it in her to truly forgive him. This letter could justify a discount for remorse. However, the contrast between the two letters makes the genuineness of any remorse questionable. In any event, the Judge allowed a generous discount for guilty pleas on the day the trial was meant to go ahead. While I accept Mr Iremonger’s explanation that this was in part due to delays in the Crown responding to resolution discussions, it seems Mr Taylor’s reluctance to accept the allegations also contributed to the delays in resolution. I consider Mr Taylor has received both a benefit in the reduction in charges and a relatively generous guilty plea discount. In the circumstances, even if the Judge could have given a modest discount for remorse (although I do not consider that has been established), the overall sentence could not be seen as excessive.

Leave to apply to convert sentence to home detention

[28]   Leave must be given to apply for home detention under s 80I of the Sentencing Act where a court has sentenced an offender to a short-term sentence of imprisonment and, at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available. Home detention is an alternative to a short-term sentence of imprisonment.16 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.17

16     Sentencing Act, s 15A(1)(b).

17     Section 15A(1)(a).

[29]   For the purposes of an appeal, an order or refusal of an order under s 80I is treated as a sentence.18

[30]   The following principles are relevant in determining whether a sentence of home detention is appropriate:19

(a)Imprisonment is a measure of last resort.

(b)A sentence of home detention is a severe sentence, second only to a sentence of imprisonment in the hierarchy of [sentences] in s 10A of the Sentencing Act.

(c)When considering the imposition of a sentence of imprisonment, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(d)When a Court is considering sentencing for the purposes of deterrence, accountability and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act.

(e)A sentence of home detention carries with it in considerable measure the principles of deterrence and denunciation.

(f)It is an error of law if the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.

(g)One of the purposes of sentencing is to assist in the offender’s rehabilitation.

(h)The judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[31]   In this case, I am satisfied that the Judge did consider whether a sentence of home detention could adequately serve the purpose and principles of sentencing and he decided it could not.

18     Section 80J.

19     Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55] (footnotes omitted).

[32]   The Judge clearly prioritised the principles of deterrence and denunciation, saying: “It also must be said publicly and shown by the sentence that this sort of behaviour is simply  unacceptable  in  our  society.”20  He  also  took  into  account Mr Taylor’s extensive history of breaches of community-based sentences in recent years, and of other court orders, in declining to impose any lesser sentence than imprisonment.

[33]   In all the circumstances, I am not satisfied that the Judge erred in declining to grant leave to apply for home detention.

Conclusion

[34]The end sentence was not manifestly excessive.

[35]Accordingly, the appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch

Copy to:
D B Iremonger, Barrister, Rangiora

20     New Zealand Police v Taylor, above n 4, at [16].