Taylor v R
[2020] NZCA 584
•23 November 2020 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA414/2020 [2020] NZCA 584 |
| BETWEEN | LUKE JAMES TAYLOR |
| AND | THE QUEEN |
| Hearing: | 11 November 2020 |
Court: | Courtney, Woolford and Mander JJ |
Counsel: | E P Priest and P D Wilks for Appellant |
Judgment: | 23 November 2020 at 3 pm |
JUDGMENT OF THE COURT
ALeave to file an affidavit in support of the application for an extension of time to file an appeal is granted.
BThe application for an extension of time to file an appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mander J)
On 2 February 2015, Luke Taylor was sentenced to six and half years’ imprisonment on four charges of importing methamphetamine, one of conspiring to import methamphetamine and one of possessing that drug for supply.[1] On 29 July 2020, he gave notice that he wished to appeal that sentence on the basis that it was manifestly excessive. Mr Taylor alleged that the sentencing Judge failed to apply appropriate discounts for cultural and personal factors to be set out in a report that would be prepared for the appeal under s 27 Sentencing Act 2002, and in recognition of his youth.
Background
[1]R v Taylor [2015] NZDC 1412.
The charges of importation, conspiracy and possession of methamphetamine for supply related to four importations of the drug through the mail between February and April 2014. Mr Taylor admitted that the first importation was of 160 g of methamphetamine. This was consistent with the amount located when the fourth shipment was intercepted by Customs. The quantities imported as a result of the second and third shipments could not be ascertained and the sentencing Judge proceeded on the basis that at least 320 g had been imported. It was, however, reasonable to assume that a greater amount of methamphetamine had been imported.
Sentencing in the District Court
Mr Taylor received a sentence indication from Judge Thomas on 3 December 2014. Applying the guideline judgment of this Court that applied at the time, R v Fatu, it was determined that the offending fell within band three and that a starting point of nine years’ imprisonment was appropriate.[2] A full discount of 25 per cent was extended for the guilty pleas, which resulted in an indicated end sentence of six years and nine months’ imprisonment.
[2]R v Fatu [2006] 2 NZLR 72 (CA) at [36].
At sentencing, Judge Thomas addressed the issue of whether there was room for any additional discount. Mr Taylor’s grandfather had addressed the Court about Mr Taylor’s background. The Judge described the information that had been provided in the following way:[3]
I have heard this morning from Mr Koroko, your grandfather, on your behalf. He detailed the difficult circumstances you had as a child and through your teens, the opportunities that you have missed out on and the problems that you and your family have had balancing your care with your needs and the various pressures that you and your family have had to face over the years.
[3]R v Taylor, above n 1, at [2].
After noting that personal circumstances did not “usually count for much” for serious drug offending, though acknowledging they do not “count for nothing”, and recognising that Mr Taylor had expressed genuine remorse, the Judge deducted three months’ imprisonment.[4]
Mr Taylor’s affidavit
[4]At [3]–[4].
In explanation for the well over five-year delay in appealing his sentence, Mr Taylor sought leave to file an affidavit. He maintained that at the time he received his sentence he was not told he had the right to appeal nor whether there was any merit in appealing and that he had just accepted his sentence.
Mr Taylor explained how he has talked to other inmates about their sentences and that it was only in 2020 that he was “told about s 27 of the Sentencing Act [2002]”. He was informed that “you can get discounts of up to 30 percent if you have had a difficult upbringing and are feeling disconnected from your culture”. He has since learnt that a sentencing court recognises that such matters can play a role in why people offend and that “you can get discounts on your sentence”. He has also learnt that specialist report writers can prepare reports.
Mr Taylor stated that he had a difficult upbringing which he believes may have impacted on why he did the things that he did. He has since spoken with a lawyer who has explained to him his rights of appeal and that a specialist report could be organised for him. Mr Taylor also affirmed that after speaking with his lawyer he learnt about youth discounts and that at the time he did not know that such a discount was available to him. His release date is in June 2021 but he says that if he can get his sentence reduced it would mean he would be home for Christmas.
For the purposes of his application to appeal out of time leave is granted to Mr Taylor to file his affidavit.
Leave to appeal out of time
Whether an extension of time should be granted to permit an appeal will depend upon the interests of justice in the circumstances of the particular case.[5] The appeal court will focus on whether the delay can be adequately explained and the merits of the appeal.[6] A long delay weighs heavily against leave being granted.[7]
[5]R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [95]–[99].
[6]R v Slavich [2008] NZCA 116 at [14]; Palmer v R [2011] NZSC 25, (2011) 25 NZTC 20–031 at [2]; McGeachinv R [2017] NZSC 16 at [4]–[5]; and F (SC129/2016) v R [2017] NZSC 34 at [15].
[7]R v Lee, above n 5, at [115].
In support of his application, Mr Taylor relied upon the recent decision of Akuhata v R, where this Court acknowledged that a failure to engage the s 27 process to obtain information about the personal and cultural background of the offender could provide a proper basis to reconsider a sentence in an appropriate case.[8] On behalf of Mr Taylor, Ms Priest submitted that the interests of justice favoured granting an extension of time. Counsel noted that Mr Taylor’s liberty was at stake, that he had spent a considerable amount of time in custody and that the merits of his appeal were strong.
[8]Akuhata v R [2020] NZCA 19 at [151].
In opposition to leave being granted, Ms Mann, on behalf of the Crown, stressed the delay of over five years. While acknowledging that an explanation for that delay had been proffered, it was submitted that Mr Taylor’s application was premised on the erroneous assumption that the current approach taken to sentencing for commercial methamphetamine offending could be applied to his appeal.
Fresh evidence
In support of the application for leave, Mr Taylor sought to adduce fresh evidence in the form of a cultural report prepared pursuant to s 27. While we accept that the information the report contains is not fresh, dealing as it does with cultural, personal and background matters pertaining to Mr Taylor that would have been known at the time of his sentencing, we accept that the interests of justice in hearing the application are best served by admitting the report.[9]
[9]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; and Mark v R [2019] NZCA 121 at [16].
The information contained in the report appears cogent and credible. In any event, if an appeal is to be pursued because of the alleged failure of a sentencing court to engage with s 27, the preparation of such a report would appear to be a necessary prerequisite.[10]
Discussion
[10]Akuhata v R, above n 8, at [151].
The merits Mr Taylor’s application to appeal his sentence after the elapse of such a long period of time rests on his belief that he was entitled to discounts that the Judge erroneously failed to afford him, resulting in the imposition of a manifestly excessive sentence. The Crown’s position is that Mr Taylor is labouring under a misapprehension that the recently revised approach to sentencing for commercial methamphetamine offending applied at the time he was sentenced but that, in any event, the sentence imposed was not manifestly excessive.
Ms Priest sought to emphasise that the Judge made no mention of s 27 in his sentencing remarks and that based upon the cultural report now filed, a significant discount should have been provided for personal background factors which the report writer opines are causally connected with Mr Taylor’s offending. We accept that is the effect of the information set out in the careful and well-prepared report. We also accept that a full bench of this Court in Zhang v R recognised how social and cultural deprivation can impair an offender’s choice and diminish their moral culpability. Where such constraints are shown to have causatively contributed to the offending they should be taken into account. Furthermore, such factors will require consideration in sentencing for methamphetamine offending.[11]
[11]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159].
However, prior to Zhang, decisions of this Court had held that trafficking in methamphetamine was so grave that minimal weight could be afforded for personal circumstances and that they counted for little.[12] While such an approach did not mean that personal circumstances could never be relevant, as the Supreme Court in R v Jarden observed, the circumstances of offenders convicted of dealing commercially in controlled drugs were required to be subordinated to the importance of deterrence.[13] This was the approach that applied at the time Mr Taylor was sentenced.
[12]See Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174]; Sarah v R [2013] NZCA 446 at [42]; and R v Wang [2014] NZCA 409 at [28].
[13]R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
In Zhang this Court addressed whether the revised approach to methamphetamine sentencing described in that judgment was to apply retrospectively. After noting that the decision represented only a change in sentencing practice, it held that its application was limited to appeals against sentence filed before the date of its delivery.[14] Mr Taylor’s appeal was filed nine months after Zhang was delivered.
[14]Zhang v R, above n 11, at [187]–[191], referring to New Zealand Bill of Rights Act 1990, s 25(g); and Sentencing Act 2002, s 6.
Ms Priest submitted that while Zhang was not binding for the purposes of this appeal, the provisions and principles of the Sentencing Act, including s 27, applied at the time Mr Taylor was sentenced. That is undoubtedly correct but it does not alter the fact that the Judge’s approach to sentencing Mr Taylor reflected the guidance and practice of this Court that applied at the time, including the predominance of deterrence over an offender’s personal background and circumstances.
Ms Priest argued that this Court has not been reticent in relying upon Zhang in appeals that predated that guideline judgment to stress the importance of s 27 reports that provided a credible account of matters that may have impaired an offender’s choice and had causatively contributed to their offending. Carr v R was cited as an example.[15] However, in that case a s 27 report had been prepared and was before the sentencing Judge.
[15]Carr v R [2020] NZCA 357 at [60].
At issue in Carr was the approach taken by the Judge to the offender’s background and in particular to issues of systemic disadvantage and deprivation outlined in the report. Unsurprisingly, the assessment of the sentencing Judge’s approach was informed by the recent observations of a full bench of this Court. Moreover, the offending in that appeal involved a combination of robberies and offences of violence and dishonesty. It was not a case involving commercial methamphetamine dealing for which the offender had been sentenced over five years before.
Another difficulty faced by Mr Taylor in pressing his application for leave is that the Judge had information before him relating to Mr Taylor’s personal circumstances and background. There is no record other than the Judge’s summary of what Mr Taylor’s grandfather said on his behalf. It would not have been as comprehensive and as well-presented as the s 27 report prepared for the purposes of this application. That said, the process adopted accorded with that expressly anticipated by s 27. The section provides that when an offender appears before a court for sentencing the offender may request the court to hear any person(s) called by the offender to speak on the personal, family, whānau, community and cultural background of the offender and the way in which that background may have related to the commission of the offence.[16]
[16]Sentencing Act, s 27(1)(a) and (b).
Turning to the issue of youth. Ms Priest was critical of the Judge failing to provide a discount for Mr Taylor’s age at the time of the offending. It was submitted that Mr Taylor’s offending demonstrated impulsive decision-making, youthful poor judgement and a failure to appreciate the consequences of his actions or their seriousness. Mr Taylor turned 22 years old on the day of the last importation. While no longer a youth, we accept that Mr Taylor was still a relatively young man at the time. The Crown sought to emphasise the organised and premeditated nature of the offending. However, we do not consider that aspect materially detracts from the well-established considerations that arise from an offender’s age, including the rehabilitative potential of young people, the effect of imprisonment upon them and the fact that young men, in particular, have not neurologically matured.[17]
Decision
[17]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77] and [98].
In assessing the merits of the appeal for the purpose of gauging whether leave should be granted we are required to focus upon the end sentence rather than the process by which it was achieved.[18] Having done so, we do not consider there is a basis upon which to conclude that the sentence imposed was manifestly excessive.
[18]R v MacCulloch [2005] 2 NZLR 665 (CA) at [50]; Ripia v R [2011] NZCA 101 at [15]; Mita v R [2012] NZCA 137 at [28]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
There can be no realistic challenge to the starting point adopted by the Judge. Band three of Fatu, which provided a starting point of between nine and 13 years’ imprisonment for the importation of large commercial quantities of methamphetamine (between 250 and 500 g), applied. The Judge acknowledged that Mr Taylor was the principal offender only for the first delivery but noted that he was significantly involved in the three other importations, and that without him having introduced his co-offenders to his overseas source, and making the necessary arrangements for them, the other three deliveries would not have occurred.
When considered against the amount of methamphetamine that could reasonably be assessed as having been imported, the Judge’s starting point at the lower end of band three could be considered generous. The Judge was prepared to extend a full discount for Mr Taylor’s guilty pleas despite his observation that they had not “come early”. As noted, the Judge had the benefit of hearing from a member of Mr Taylor’s whānau who spoke about Mr Taylor’s upbringing and personal circumstances. The Judge was also in receipt of a letter from the Kaumātua and Kuia Council of Mr Taylor’s marae that spoke of his difficult childhood and background. To that extent, s 27 was in fact invoked at sentencing.
Neither the availability of more detailed information in the form of a written report nor the recent change in sentencing practice for methamphetamine offending leads us to conclude that the Judge erred in his approach or that a manifestly excessive sentence was imposed. Contrary to the argument advanced in written submissions, we consider the Judge did take into account the representations made by Mr Taylor’s grandfather which in combination with the acknowledged remorse of Mr Taylor resulted in the three-month deduction. Mr Taylor’s age was not explicitly referenced by the Judge, but we do not consider that aspect, when set against the moderate starting point towards the lower end of the available range, could be reasonably argued as having resulted in an excessive sentence.
We consider that Mr Taylor’s application for leave was based on the misapprehension that the approach to the exercise of sentencing discretion in relation to commercial methamphetamine offending that has been modified in the wake of Zhang applied when he was sentenced over five years ago. We consider the approach taken by the Judge, based as it was upon the applicable guideline judgment of this Court, was orthodox and not seriously capable of being argued as having resulted in a manifestly excessive sentence.
Having regard to the extent of the delay, the misapprehended basis upon which the appeal is sought to be brought and its limited merits, we decline leave.
Conclusion
The application for leave to appeal out of time is declined.
Solicitors:
Crown Solicitor, Hamilton for Respondent
5
15
0