Taylor v R
[2017] NZHC 1356
•20 June 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2017-419-000010 [2017] NZHC 1356
BETWEEN BRADLEY DAVID TAYLOR
Appellant
AND
THE QUEEN Respondent
Hearing: 20 June 2017 Appearances:
R Barnsdale for the Appellant
D J McWilliam for the RespondentJudgment:
20 June 2017
JUDGMENT OF WOOLFORD J
Solicitors: Almao Douch (Crown Solicitor), Hamilton
Counsel: Richard Barnsdale, Hamilton
TAYLOR v R [2017] NZHC 1356 [20 June 2017]
[1] Mr Taylor pleaded guilty to four charges of conveying threats of harm to people or property1 and one charge of theft.2 He was sentenced to a term of two years and six months imprisonment by Judge Spear in the District Court on
3 October 2016.3
[2] He now appeals against that sentence.
[3] The appeal is out of time. However, the Court may grant leave to appeal if it is in the interests of justice.4 The delay in appeal is not Mr Taylor’s fault. I grant leave to appeal.
Offending
[4] Mr Taylor was the Hamilton City Council groundsman for Gower Park.
[5] On the morning of Monday 21 June 2015, while he was working, Mr Taylor called 111 to report an explosive device he had located in the female toilets at the park. The police cordoned off the area for over four hours to prevent public access. Members of the New Zealand Defence Force Improvised Explosive Device Team, also known as the bomb squad, travelled from Auckland to dismantle the device. On arrival, they discovered quickly that the device was no more than a small length of PVC pipe, a black capacitor and wire held together with electrical tape.
[6] The following day, Mr Taylor called 111 once more to report he had located a package in the same location. On the package was a note which read:
Sorry about yesterday this one is the right one.
[7] Once again the area was cordoned off for four hours, the Improvised Explosive Device Team were called from Auckland, and the device was found to be the same items as previously, with the addition of six small bottles of coloured
liquid.
1 Crimes Act 1961, s 307A(1)(b), which carries a maximum penalty of seven years imprisonment.
2 Crimes Act 1961, s 219 and 223(b), which carries a maximum penalty of seven years imprisonment.
3 R v Taylor [2016] NZDC 19526.
4 Criminal Procedure Act 2011, s 248(4)(a).
[8] The following week, on Monday 29 June, another groundsman in the park located a similar device in the same location, although this time containing nails, a grey aggregate, ammunition and cotton wadding. Again, the Improvised Explosive Device Team was called in from Auckland, and the police cordoned off a significant area for almost four hours to prevent public access.
[9] The following day, Tuesday 30 June 2015, Mr Taylor called 111 once more and reported that he was standing on a bomb that was buzzing, and that if he were to move it would be set off. This time, the Improvised Explosive Device Team were flown to Hamilton by police helicopter. In addition, members of the Waikato Armed Offenders Squad met Mr Taylor. The area was cordoned off for three hours.
[10] The fake device in this instance was more sophisticated, including three glass bottles, PVC pipe, a large quantity of small calibre ammunition, wire, tape and cotton wadding. It included an electronic buzzer and a home-made pressure switch. It buzzed continuously. Attached to the device was a note reading:
Don’t move the buzzer means you have tripped a force sensor. If you move off or add more weight to the sensor it will set off that little surprise in front of you. Nothing personal you were just the first one to use this toilet sorry you win some you lose some.
[11] Predictably, it transpired that the fake device was again made by Mr Taylor.
[12] When police searched Mr Taylor’s address, they found items taken from the Ngaruawahia Fire Station. He had been a member of the Ngaruawahia Volunteer Fire Brigade since around April 2012. The equipment was valued at over $6000. It was returned the next day.
Personal circumstances
[13] Mr Taylor grew up and attended school in Hamilton. On leaving school at age 17, after the fifth form, he competed an 18 month pre-trade course followed by a three year apprenticeship as a groundsman. He worked at a number of golf courses as a groundsman before taking up his position with the Hamilton City Council. He has also worked as a security doorman at a nightclub. While on bail, Mr Taylor
started a new job at a workshop providing steel supplies. He has a positive reference from his employer, who considered he had become a vital part of the workshop.
[14] Mr Taylor had served as a volunteer fire fighter for the last three years and with a local youth group as a volunteer cadet officer. He has a longstanding interest in collecting military memorabilia, organising re-enactments and fundraising for various charities.
[15] Mr Taylor has only one previous conviction for wilful damage from 2008, for which he was to come up for sentence. This was not serious offending and is not relevant to the current matter.
[16] A psychiatric report was prepared in respect of Mr Taylor’s fitness to stand trial. Mr Taylor has previously struggled with low mood and depression. This includes periods where he has been non-communicative. He has also made suicide threats in the past. His GP made a preliminary diagnosis of depressive disorder and possible personality disorder, but considered he might suffer from bipolar affective disorder. A previous psychiatric report considered Mr Taylor might have adjustment disorder. However, no mental health clinician has made a diagnosis other than depression. Mr Taylor has claimed at times that he cannot remember his offending, although at other times he has described it in detail. The psychiatric report before me notes that Mr Taylor has claimed memory loss and false memories only in relation to offending or other difficult times. It states that this is not explicable by a medical condition.
[17] Mr Taylor appears to have voluntarily taken steps towards rehabilitation since his offending, completing an anger management course while on bail. In the past he has also voluntarily accessed support, seeking counselling through his employee assistance programme in 2014 following the end of his marriage and subsequent depression.
District Court decision
[18] Judge Spear emphasised that the offending was serious. He held that it was necessary to impose sentence that would deter anyone who contemplated such
behaviour, to convince them that it was not worth the risk or any thrill or attention they might get. He considered that deterrence was “the most important feature to this offending”.5 He pointed out that if there had been a real bomb scare elsewhere and the bomb squad had been busy with Mr Taylor’s offending, there would have been dangerous consequences.
[19] Judge Spear adopted a starting point of three years imprisonment for the lead offence of threatening harm to the public. He made reference to the maximum term of seven years imprisonment and that Mr Taylor offended four times. He added an uplift of six months imprisonment for the theft.
[20] In adjusting the starting point, the Judge held that the pre-sentence report demonstrated that Mr Taylor lacked remorse for his actions. He noted that the report held Mr Taylor to be of a medium risk of re-offending and that if he was to re-offend it would likely be at a high level of harm. He said that two psychiatrists had found “nothing wrong with” Mr Taylor.
[21] However, he applied a discount of six months against the sentence for Mr Taylor’s lack of previous convictions, and an approximate 15 per cent discount for Mr Taylor’s guilty plea. This resulted in a sentence of two years and six months imprisonment.
Submissions
Appellant’s submissions
[22] Mr Barnsdale for Mr Taylor appeals on the basis that the sentence was manifestly excessive on the following grounds:
(a) The starting point taken by Judge Spear was too high.
(b)There was no credit for the fact that Mr Taylor successfully observed restrictive bail conditions for a long period of time.
5 At [18].
[23] Mr Barnsdale submits that it is unclear what Mr Taylor’s motivations were. Further, that the actual cost of Mr Taylor’s offending was largely economic.
[24] At the District Court, counsel suggested a starting point of two years imprisonment or less.
Crown submissions
[25] The Crown submits the starting point was appropriate in light of the only identified relevant case, R v Mangu.6 It emphasises that the offending took place on four occasions, and the bombs were treated for all intents and purposes as real. The threats resulted in considerable use of resources, including the bomb squad once arriving by helicopter.
[26] The Crown accepts that a reduction in sentence may generally be given to take account of time spent subject to restrictive bail conditions. However, it submits that this is a discretionary matter for the sentencing Judge. Further, the Crown cites extensive case law to demonstrate that the extent to which bail conditions are restrictive will determine the appropriateness of a discount. The Crown submits that, accordingly, the bail conditions imposed on the defendant were not particularly onerous, and do not justify a discount.
Approach on appeal
[27] An appeal against sentence is an appeal against a discretion. It must be allowed only if the Court is satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.7 An error will be established if the sentence is manifestly excessive or wrong in principle, or if there are exceptional circumstances.8 If a sentence is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender, then an appeal will be allowed on the
grounds that the sentence is manifestly excessive.9
6 R v Mangu DC Whangerei CRI-2008-088-005325, 28 April 2009.
7 Criminal Procedure Act 2011, s 250.
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [31].
9 Tutakangahau v R, above n 8, at [35].
[28] The focus is on the end sentence rather than the process adopted to reach the end sentence. If the end sentence is within range, an appeal court will not tinker with it.10 Accordingly:11
The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.
[29] I will consider the appropriate end sentence in order to establish whether the sentence imposed by Judge Spear was manifestly excessive.
Relevant case law
[30] Mr Taylor was charged with threatening harm to people or property by communicating information likely to cause significant disruption that he knew to be false under s 307A(1)(b). The relevant section reads:
307A Threats of harm to people or property
(1) Everyone is liable to imprisonment for a term not exceeding 7 years if, without lawful justification or reasonable excuse, and intending to achieve the effect stated in subsection (2), he or she—
(a) threatens to do an act likely to have 1 or more of the results described in subsection (3); or
(b) communicates information—
(i) that purports to be about an act likely to have one or more of the results described in subsection (3); and
(ii) that he or she believes to be false.
(2) The effect is causing a significant disruption of one or more of the following things:
(a) the activities of the civilian population of New Zealand:
(b) something that is or forms part of an infrastructure facility in
New Zealand:
(c) civil administration in New Zealand (whether administration undertaken by the Government of New Zealand or by institutions such as local authorities, District Health Boards, or boards of trustees of schools):
(d) commercial activity in New Zealand (whether commercial activity in general or commercial activity of a particular kind).
(3) The results are—
10 Ripia v R [2011] NZCA 101 at [15].
11 Larkin v Ministry of Social Development [2015] NZHC 670 at [26].
(a) creating a risk to the health of one or more people: (b) causing major property damage:
(c) causing major economic loss to one or more persons:
(d) causing major damage to the national economy of New
Zealand.
(4) To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that a person has committed an offence against subsection (1).
[31] Counsel for the Crown identified one relevant case, R v Mangu.12 In that case, Mr Mangu called a high school and made a false bomb threat. The threat caused “enormous disruption to the school students, teachers and general members of the public and emergency services”.13 The fire and rescue services were called. The school was evacuated and members of the public were aware and upset. The threat was made so that Mr Mangu could rob a nearby bank. The Judge in the District Court held that a starting point of somewhere between nine and twelve months imprisonment would be appropriate. He settled on a starting point of nine
months.
[32] A further relevant case is that of R v Bron.14 In that case, the offender called
111 at 4.30 am on a Friday morning. He stated that there was an incendiary device at the Gisborne Police Station, and the police had 40 minutes to evacuate the building. The threat was taken seriously, and the police station was evacuated. The evacuation included nine prisoners taken from the cells. Surrounding roads were cordoned off. The judgment by Harrison J in the High Court was given prior to the development of the two-stage sentencing approach by the New Zealand courts, and thus Harrison J did not clearly identify a starting point. Nonetheless, Harrison J noted that imprisonment would have been appropriate. However, given the offender was undertaking a rehabilitation course, Harrison J imposed an end sentence of 200 hours
community work instead.
12 R v Mangu, above n 6.
13 At [2].
14 R v Bron HC Gisborne CRI-2006-016-1785, 1 December 2006.
Other relevant offences
[33] While this offending was charged under s 307A, lesser offences of using a telephone to report false emergencies, or wasting police resources, might also be relevant. Similar (albeit lesser) offending has been charged under such sections in the past. For example, in Police v Graham, Mr Graham was charged with misusing a telephone and impersonating a police officer for calling a bar late at night claiming to be a police officer and reporting that there was a bomb on the premises. About 60 people were evacuated from the bar, causing panic. Several police cars arrived and officers searched the premises, but did not find a bomb. Judge Sinclair in the District Court said the joke had backfired and caused chaos and significant financial loss. Mr Graham, who had already participated in a restorative justice conference and paid $2000 in reparations, was sentenced to a further $800 in reparations,
100 hours community work and nine months supervision. Similarly, in Police v Pere, the offender was charged with wasting police time for threatening to blow himself up on a public bus. The armed offenders squad and police negotiating teams were called and Mr Pere left the bus after four hours. He was sentenced to nine months supervision.
[34] Wasting police resources is also an offence under s 24 of the Summary Offences Act. Any person who makes a false allegation or report to police, without believing it to be true, or anyone who makes a statement that gives rise to serious apprehension for the safety of any person or property, with the intention of causing wasteful deployment of police resources, is liable to a maximum penalty of three months imprisonment or a fine not exceeding $2,000. The following sentences under that section did not result in widespread public concern, but did similarly waste the resources of emergency services:
(a) In Atkinson v Police, the offender called 111 and asked for police assistance saying there were 40 people fighting with baseball bats in the street.15 Almost all of the police resources available in Whanganui were sent to where he was located. Joseph Williams J in the High
Court held that imprisonment would not normally be appropriate for
15 Atkinson v Police HC Wanganui CRI-2010-483-48, 20 August 2010.
such offending, but upheld a term of two months imprisonment imposed in the District Court for that offending and two other thefts.
(b)In Clarke v Legal Services Commissioner, the offender called police to say that there was a fight involving an off duty police officer at his location, and there were 30 or more motorbikes at the premises. He said police would likely need batons and pepper spray. Three patrol cars were dispatched. Venning J held that imprisonment was not a
likely outcome.16
(c) In Guile v Police the High Court upheld a sentence of two months imprisonment for a 24 year old man who had six previous convictions for placing false calls to emergency services, on this occasion making a bogus emergency call alleging a man with a firearm was walking across a supermarket car park.17 He had been given a last warning and repeatedly told that such calls placed others’ lives at risk.
Analysis
Starting point
[35] In order to establish a starting point, it is necessary to have regard to the seriousness of Mr Taylor’s offending in relation to the maximum term and relevant cases. As Judge Spear noted, this is difficult given the relative lack of similar cases. Judge Spear had only one case, R v Mangu, cited to him at the time of sentence.
[36] Mr Taylor’s threats were unique in that, unlike other bomb threats, he actually constructed fake bombs, but this had the effect of prolonging the impact of the threat. This is an aggravating feature of the offending compared to R v Mangu, R v Bron and other false emergency calls. It shares, however, some similarities with Police v Pere, where Mr Pere’s presence at the scene and his claim that he had
weapons on his person increased the credibility of the threat.
16 Clarke v Legal Services Commissioner [2012] NZHC 1305.
17 Guile v Police HC Timaru AP8/01, 10 April 2001.
[37] Quite clearly, Mr Taylor’s threats caused a significant waste of police time and resources. However, I am of the view that Mr Taylor’s threats were not designed to cause mass panic in the same way that others might be. The threat in Mangu related to a high school, and required evacuation of students, staff and the surrounding public. The level of panic and the number of people directly affected was greater. Similarly, in Bron the threat related to a police station and required a large and difficult evacuation. By contrast, Mr Taylor appears to have picked the location of a park for convenience rather than maximum impact. The threats took place during the day, when the park was likely not full. While I accept that the area required cordoning off, and there was no doubt a wider impact on the community given the repeated threats, in my view each individual instance of offending created less panic than those in Mangu and Bron. The major impact was the wasted resources and the opportunity cost of those resources. This is undoubtedly serious. But it differentiates Mr Taylor’s offending from the more serious examples of its type.
[38] The construction of the fake bombs, however, demonstrates a high level of premeditation, as do the repeated threats and the escalation of the devices used to increase their credibility. As far as planning goes, Mr Taylor’s scheme was ornate. By contrast, the Judge in Mangu considered the bomb threat to have been poorly thought through.
[39] Also relevant is the question of motive. In Mangu, the offender made a threat in order to divert police resources and facilitate other offending. That is undoubtedly an aggravating feature not relevant here. As Judge Spear identified, it is unclear what Mr Taylor’s motive was. However, it does not seem to have been particularly malicious. It appears that Mr Taylor enjoyed the fanfare of the bomb squad arriving, and the resulting attention. It is inherent in Mr Taylor’s guilty plea that he intended to cause significant disruption, which indeed he did cause. Quite clearly he was also well aware of the consequences of a 111 call of that kind after the first offence, and continued to offend. However, I am not convinced that his goal was to cause terror.
[40] Looking at Mr Taylor’s offending in light of the maximum sentence, in my view it is an example of minor to moderate offending of this kind. Serious instances
of offending under this section would likely be terrorist threats, which the section was designed to encompass.18 Minor or moderate threats under the section would be those of Mr Taylor, Mr Mangu or Mr Bron. Offending less serious than Mr Taylor’s would likely be charged under another section, as the cases I have identified above demonstrate.
[41] I do not consider Mr Taylor’s threats to be the most serious example even of a moderate threat given his primary motivation was not to cause mass disruption to the community (beyond the emergency services), and given his threats did not, in fact, create the kind of disruption that could have resulted at a different location, for example a school. For that reason, I am of the view that each of Mr Taylor’s offences in isolation was less serious than the offence in Mangu or that in Bron. However, that the bomb threats were repeated, with increasingly complicated fake bombs, is undoubtedly an aggravating factor. I agree with Judge Spear that the offending was a course of conduct and so the sentence does not need to be the equivalent of four sentences added together. In light of the case law identified, I consider a short sentence of imprisonment is an appropriate starting point. Accordingly, I would impose a sentence of two years imprisonment.
[42] On the other hand, I agree with Judge Spear that an uplift of six months was appropriate for the theft offending. A theft of that gravity as a stand-alone offence might attract a term of 12 months imprisonment. It is separate offending from the four threats and a six month uplift is justified.
[43] This results in a starting point of two years and six months imprisonment.
Adjusting the starting point
[44] Judge Spear allowed a discount of six months for Mr Taylor’s lack of previous convictions. I consider this a sound approach. Offending appears to be out of character for Mr Taylor. He has no previous convictions. In addition, while he has not demonstrated remorse, he voluntarily made rehabilitative efforts while on
bail, attending an anger management course. While his theft offending undoubtedly
18 The section in fact originated in the Counter-Terrorism Bill. Foreign Affairs, Defence and Trade
Committee Counter-Terrorism Bill (8 August 2003).
tarnishes the three years he spent as a voluntary fire fighter, he nonetheless appears to have been involved in the community. For this I agree that a six month discount for character is appropriate.
[45] Counsel submits that a discount of 15 per cent is appropriate given
Mr Taylor’s guilty pleas, which did not come at the earliest opportunity. I concur.
[46] Counsel for Mr Taylor submits that a discount for the time he spent on bail is also appropriate. Mr Taylor was on bail from July 2015 until sentencing on
3 October 2016. He was initially granted bail on a 24 hour curfew to his parents’ address with no exceptions. After approximately five months, on 11 December 2015 a variation of bail was granted allowing the defendant to live at his own address and leave so long as he was with one or both of his parents. A further variation was made on 2 September 2016 to allow the defendant to commence employment.
[47] If the sentencing Judge is of the opinion that a person’s freedom of movement has been significantly infringed, he or she has a discretion to reduce the starting point.19 This discretion is to be exercised with care, and is not automatic. In R v Tamou, the Court of Appeal allowed a discount of three months on appeal for nine months spent on electronically-monitored bail with a 24-hour curfew.20
[48] In the present case, I consider that Mr Taylor’s bail conditions were sufficiently restrictive to justify a discount. For the first five months of his remand, he was not able to live at his own address, and he was subject to a 24-hour curfew. Five months is a considerable period relative to his sentence. Subsequently, the conditions became less restrictive, but still onerous. For the following ten months, Mr Taylor was permitted to live at his own address and leave in the company of one or both of his parents. I do not accept that effect of this was to allow Mr Taylor to leave whenever he liked, as the Crown submits. However, it was significantly less burdensome. For the final month of his bail, Mr Taylor was permitted to go to work. As a result of the bail conditions Mr Taylor was under, particularly for the first five months, I discount the appropriate sentence by two months.
[49] That brings Mr Taylor’s nominal end sentence to 18 months imprisonment. I consider that is appropriate in totality, having regard to Mr Taylor’s personal circumstances.
Home detention
[50] As Mr Taylor’s nominal end sentence is under two years of imprisonment, the
Court is obliged to consider a term of home detention.21
[51] I consider that offending of this type should ordinarily attract a sentence of imprisonment in order to deter the offender and others from further threats to the community. It is serious offending. However, in my view it is not necessary for Mr Taylor in the circumstances to receive a sentence of imprisonment for the purposes of deterrence. Mr Taylor has never before been subject to a sentence of any kind. A sentence of home detention is a significant sentence in its own right, and
also serves the purpose of denunciation and deterrence.22 It is sufficient here.
[52] Factors in favour of commuting Mr Taylor’s sentence include his lack of criminal history, his age, his guilty plea and his personal circumstances, which are, in my view, unusual. In addition, there is a suitable address available. Mr Taylor has demonstrated that he is capable of abiding by restrictive bail conditions. He has also indicated a willingness to engage with support services in the community. I note that his family appear to be supportive given their involvement when Mr Taylor was on bail and I note and acknowledge the presence of his mother, Mrs Taylor, here today. A sentence of home detention would offer better prospects of rehabilitation and reintegration for Mr Taylor. I would impose a sentence of ten months home detention.
Conclusion
[53] I consider that Judge Spear erred in identifying the starting point for Mr Taylor, largely because of the lack of relevant authorities provided. Further, I consider it was appropriate to allow a discount for the time Mr Taylor spent under
restrictive bail conditions. I accept that this is a matter of discretion for the Judge, but it does not appear to have been considered in this case.
[54] I have concluded that an appropriate end sentence for Mr Taylor would be ten months home detention. This is quite different from the sentence imposed of two and a half years imprisonment. The sentence imposed was therefore, in my view, manifestly excessive.
[55] I allow the appeal. The sentence of two and a half years imprisonment is quashed. Taking into account the eight months Mr Taylor has already served in prison, I impose a sentence of two months home detention.
[56] This is to be served at the home detention address identified in the pre- sentence report. Mr Taylor is to attend and complete any appropriate assessment,
treatment or counselling as directed by a probation officer.
Woolford J
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