Taylor v R - [2021] NZCA 606

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA681/2019
[2021] NZCA 606

BETWEEN	JAMES MATTHEW TAYLOR Appellant
AND	THE QUEEN Respondent

Hearing:	1 September 2021
Court:	Gilbert, Duffy and Peters JJ
Counsel:	A J Davis for Appellant J E Mildenhall for Respondent
Judgment:	17 November 2021 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction on the aggravated burglary charge is allowed. The conviction on that charge is set aside and a conviction for burglary under s 231(1)(a) of the Crimes Act 1961 is substituted.
BThe appeal against sentence is allowed. The sentences imposed in the District Court are set aside and the following sentences substituted, reducing the effective end sentence of 10 years’ imprisonment to six years and 10 months’ imprisonment.
C The sentence on the charge of injuring with intent to cause grievous bodily harm is reduced from five years and seven months’ imprisonment to four years and nine months’ imprisonment.
DMr Taylor is sentenced to two years and one month’s imprisonment on the charge of burglary of the property at Wairakei Road, Christchurch. This is to be cumulative on the sentence imposed on the charge of injuring with intent to cause grievous bodily harm.
EThe sentence on the charge of possession of instruments for burglary is reduced from nine months’ imprisonment to six months’ imprisonment. This is to run concurrently with the sentence imposed for the Wairakei Road burglary.
FThe sentence on the charge of burglary of Odyssey House in Greers Road, Christchurch is reduced from 12 months’ imprisonment to six months’ imprisonment. This is to run concurrently with the sentence imposed for the Wairakei Road burglary.
GThe sentence on the charge of breach of release conditions is reduced from three months’ imprisonment to two months’ imprisonment. This is to run concurrently with the sentence imposed for the Wairakei Road burglary.

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REASONS OF THE COURT

(Given by Duffy J)

Following trial by jury in the District Court at Christchurch, James Matthew Taylor was found guilty of aggravated burglary of a property in Wairakei Road, Christchurch.[1] Around the same time, Mr Taylor also entered guilty pleas in relation to three unrelated sets of offending and was convicted of injuring with intent to cause grievous bodily harm (the GBH offending); burglary of Odyssey House in Greers Road, Christchurch; and breach of release conditions. On 16 December 2019, he was sentenced on all four sets of offending by Judge O’Driscoll.[2] The Judge imposed cumulative sentences for the GBH offending and aggravated burglary offending, resulting in an end sentence of 10 years’ imprisonment. The end sentence was constructed as follows:[3]
(a)GBH offending (cumulative) — five years and seven months’ imprisonment.
(b)Aggravated burglary at Wairakei Road (cumulative) — four years and five months’ imprisonment.
(c)Possession of instruments for burglary (concurrent) — nine months’ imprisonment.
(d)Burglary at Odyssey House (concurrent) — 12 months’ imprisonment.
(e)Breach of release conditions (concurrent) — three months’ imprisonment.
[1]Mr Taylor pleaded guilty to a related charge of possessing instruments…

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.

Continue reading Taylor v R

Details

AGLC: Taylor v R [2021] NZCA 606
Case: [2021] NZCA 606
Decision Date: 17 November 2021 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal against conviction and sentence by James Matthew Taylor in the case of Taylor v R. Taylor was convicted of aggravated burglary of a property in Wairakei Road, Christchurch, injuring with intent to cause grievous bodily harm, burglary of Odyssey House in Greers Road, Christchurch, and breach of release conditions. He was sentenced to a total of 10 years' imprisonment. The appeal against the conviction for aggravated burglary and the sentence was allowed. The conviction for aggravated burglary was set aside and replaced with a conviction for burglary under s 231(1)(a) of the Crimes Act 1961. The sentence was reduced to six years and 10 months' imprisonment. The sentence for injuring with intent to cause grievous bodily harm was reduced to four years and nine months' imprisonment. The sentence for the Wairakei Road burglary was reduced to two years and one month's imprisonment, to run cumulatively with the sentence for the GBH offending. The sentences for possession of instruments for burglary, burglary of Odyssey House, and breach of release conditions were also reduced and ordered to run concurrently with the sentence for the Wairakei Road burglary.

The Court found that the trial judge's direction to the jury that burglary could be a continuing offence was incorrect, as burglary is not a continuing offence. This legal error precluded the jury from reaching a proper verdict based on the law, and therefore the appeal against conviction on the aggravated burglary charge must be allowed. The conviction on that charge was set aside, and a conviction for burglary under s 231(1)(a) of the Crimes Act 1961 was substituted.

The Court also found that the sentence imposed by the District Court was excessive. The revised sentence took into account the successful conviction appeal, and resulted in a reduced effective end sentence of six years and 10 months' imprisonment. The appeal against sentence was allowed, and the sentences imposed in the District Court were set aside and replaced with the revised sentences as outlined above.

Orders