Taylor v R
[2018] NZCA 498
•13 November 2018 at 4.00 pm
FOR A COURT READY (FEE REQUIRED) VERSION PLEASE FOLLOW THIS LINK
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA169/2018 [2018] NZCA 498 |
| BETWEEN | HAYDEN JOSEPH TAYLOR |
| AND | THE QUEEN |
| Hearing: | 6 September 2018 |
Court: | Kós P, Clifford and Williams JJ |
Counsel: | N P Chisnall and S Moore for Appellant |
Judgment: | 13 November 2018 at 4.00 pm |
Reissued: | 14 November 2018 |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal is allowed.
CThe sentence of preventive detention is quashed and a sentence of 14 years’ imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
In April 1996, when he was 20 years of age, Hayden Taylor abducted and raped a young Auckland woman. In September that year he abducted and murdered an 18‑year‑old female acquaintance from Helensville. He pleaded guilty to the September crimes and was sentenced to life imprisonment in November 1996. He elected trial by jury on the earlier offending. In due course he was convicted of those charges in August 1997, and sentenced by Morris J in December 1997.[1] The Judge quite properly took into account the later offending and the circumstances of the abduction and killing.[2] After hearing evidence from two police officers he found that offending was sexually motivated. It was accepted Mr Taylor qualified for preventive detention. After considering psychiatric evidence, limited apparent prospects of rehabilitation and the interests of the public, a sentence of preventive detention was imposed on the rape charge.[3] Mr Taylor did not appeal.
[1]R v Taylor HC Auckland T244/96, 16 December 1997.
[2]At 3.
[3]At 2 and 3–5. He was convicted and discharged on the abduction charge.
Eight years after Mr Taylor’s appeal period expired, the Supreme Court held in R v Mist that the qualifying age for preventive detention under s 75 of the Criminal Justice Act 1985 was 21 at the date of offending, rather than conviction.[4] That represented a change in the interpretation of s 75. Mr Taylor turned 21 only after committing the offending set out above. Mr Taylor took legal advice on the effect of Mist shortly after the decision was delivered. He decided not to seek an extension of time to appeal. Twelve years on, however, he has changed his mind. He now applies for an extension of time to appeal. His submission, in short, is that he was not eligible for preventive detention at all under s 75 of the Criminal Justice Act when, in December 1997, it was imposed upon him.
[4]R v Mist [2005] NZSC 77, [2006] 3 NZLR 145 at [5] per Elias CJ and Keith J, at [62] per Gault J and at [107] per Blanchard and Tipping JJ.
This application raises a point of some complexity about the tension between the principle of finality of judicial decisions and the declaratory theory of the common law (to the effect that judgments declare the law both retrospectively and prospectively). We discuss that issue first. We then turn to whether the extension should be granted and the sentence of preventive detention quashed. Finally, if that sentence is quashed, we consider what finite sentence should be substituted for preventive detention. We summarise our conclusions below at [28]–[31].
Finality of judicial decisions versus the declaratory theory of the common law
It is a general principle of the common law that although a judgment declares the law retrospectively as well as prospectively,[5] a litigant who once lost a case she would have won had the law been understood then as it is understood now, cannot go back and start again. The principle may be demonstrated by this example set in a civil context: let us suppose A, B and C have essentially identical claims against Z. A sues Z first, but fails. B later advances his identical case to a higher judicial level and wins, in a judgment overturning the reasoning in A’s case. A cannot now seek to have her decision recalled and reversed. Yet C, who has stood by while all this happened, may now sue Z on the basis of B’s favourable decision. That decision applies retrospectively to all but A because her rights have already been adjudicated. B and C win, but A still loses. The principle of finality of judgment trumps the declaratory principle which applies the revised law retrospectively.
[5]See for example Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49, [2007] 1 AC 558 at [23].
To that general principle there are, naturally, some exceptions.
The principal exception is where A’s rights have not yet been finally determined, because a right of appeal still lies. In that case A may appeal her decision and ask for an outcome consistent with B’s decision. But this is not a true exception: the overriding principle of finality does not apply, for the perfectly simple reason that A’s decision was not in fact final.
On the other hand, where all rights of appeal have been exercised and are now spent, A has no recourse at all. That is so despite the fact the common law has shifted in favour of her claim, with retrospective application to all but her. That might seem rather unfair: A’s rights have been adjudicated in accordance with principles later found to be wrong. All her co-litigants are able to access the benefit of B’s judgment, yet she cannot. But there are powerful, settled principles founded on convenience and procedure that stand in A’s way. As to procedure, it is clear that a mere change in the common law does not give A fresh appeal rights. And as to convenience, the need for finality after appeal rights have been exhausted is given priority. At that point, parties are entitled to bank the outcome and organise their affairs accordingly. And, furthermore, the evolutionary capacity of the common law should not be constrained by the potential for previously resolved cases to rear up again.
But now consider a third state of affairs — lying between the first two and, accordingly, rather more difficult to assess or predict. If rights of appeal lay, but were not exercised, A may still seek to appeal out of time. A contest will then arise before the leave court as to whether an extension of time should be granted despite A’s earlier inaction, it being appreciated by all that if leave is granted, A will probably win. While there are some considerations common to the scenario discussed above at [7], the non‑exercise of appeal rights means that this third scenario does not engage the principle of finality in the same way. An application to appeal out of time is more likely to be granted than a fresh appeal (which, where appeal rights are spent, largely depends upon fraud or cogent new evidence which could not have been adduced previously).
So far, we have been discussing the competing principles in the context of a civil case. The arguments for A are rather stronger if she is a criminal defendant and prisoner and her rights of liberty are impaired when compared to the otherwise identical circumstances of defendant B, who has the benefit of a later, more permissive judgment. In effect, the present appellant is A, and Mr Mist was B.
A Full Court of this Court in R v Knight reviewed the principle of finality in the context of applications for extensions of time under s 388(2) of the Crimes Act 1961.[6] In that case the applicant was convicted of benefit fraud following her receipt of a single mother’s benefit while living in a relationship “in the nature of marriage”. Sixteen months after being sentenced this Court delivered a judgment which had the effect that Ms Knight was not in fact living in a relationship in the nature of marriage.[7] She was therefore always entitled to the benefit she received. Two and a half months later, and two years after she was sentenced, she sought an extension of time to bring an appeal against conviction. It was granted. In the course of its analysis the Court stated the s 388(2) discretion is “not unfettered” and that “[t]he touchstone is the interests of justice in the particular case”.[8] Time limits are imposed because of society’s interest in the final determination of litigation, but “the respect which is traditionally shown for the liberty of the subject” may also be relevant.[9] In order to justify a departure from the principle of finality:[10]
The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
(Emphasis added.)
[6]R v Knight [1998] 1 NZLR 583 (CA). The current equivalent of s 388(2) is s 248(4) of the Criminal Procedure Act 2011.
[7]Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA).
[8]R v Knight, above n 6, at 587.
[9]At 587 quoting from R v Hawkins [1997] 1 Cr App R 234 (CA), at 239.
[10]At 589.
We will touch briefly on the more important cognate English and Irish decisions. In R v Hawkins the applicant had pleaded guilty to various mortgage fraud charges.[11] He sought an extension of time of seven months for which to seek leave to appeal his conviction on the basis of a subsequent House of Lords decision that meant that he had pleaded guilty on a different understanding of the law.[12] The Court of Appeal held the circumstances occasioned no substantial injustice. Lord Bingham CJ observed:[13]
That practice may on its face seem harsh. On the other hand, the consequences of any other rule are equally unattractive. It would mean that a defendant who had roundly and on advice accepted that he had acted dishonestly and fraudulently, and pleaded guilty, or who had been found guilty and chosen not to appeal, could after the event seek to reopen the convictions. If such convictions were to be readily reopened it would be difficult to know where to draw the line or how far to go back.
Lord Bingham CJ went on to note that “the practice of the Court has in the past, in this and comparable situations, been to eschew undue technicality and ask whether any substantial injustice has been done”.[14] There the applicant had pleaded guilty to an array of dishonesty offending and in all probability alternative counts could have been laid successfully.[15]
[11]R v Hawkins, above n 9.
[12]R v Preddy [1996] AC 815 (HL).
[13]R v Hawkins, above n 9, at 240.
[14]At 240.
[15]At 239–241.
In R v Ballinger the applicant had been a Petty Officer Physical Trainer in the Royal Navy.[16] In April 2003 he was convicted of indecent assault following a Court Martial. Shortly after conviction he sought advice and counsel advised against appealing. The following year it was held that such trials were unlawful because the role of the Naval Judge Advocate was insufficiently independent to conform to art 6 of the European Convention on Human Rights. The applicant therefore sought an extension of time in which to apply for leave to appeal. The Court of Appeal was not satisfied the applicant had suffered a substantial injustice.[17] He had pleaded guilty and had not otherwise criticised the Judge Advocate’s conduct or sought to challenge his conviction.[18]
[16]R v Ballinger [2005] EWCA Crim 1060, [2005] 2 Cr App R 433.
[17]At [21].
[18]At [21].
The Supreme Court of Ireland dealt with a similar question in A v Governor of Arbour Hill Prison.[19] There the appellant had pleaded guilty and was convicted of unlawful carnal knowledge of a girl below the age of consent. A little under two years later the Supreme Court declared the provision creating that offence was inconsistent with the Constitution of Ireland. The appellant then sought leave to appeal against his conviction, out of time, on the basis it was null. The High Court agreed. On appeal, the Supreme Court disagreed. Murray CJ commented that:[20]
[i]n a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. That is the general principle.
Like the Court of Appeal in Hawkins, the Chief Justice placed reliance on the guilty plea to the underlying conduct alleged: the applicant acknowledged that he knew the girl he was having sexual intercourse with was below the age of consent.[21]
[19]A v The Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88.
[20]At [125].
[21]At [27].
In R v Cottrell, a decision of the England and Wales Court of Appeal, one of two applicants sought leave to appeal out of time against convictions entered for indecent assault in relation to girls aged 15 years old on the basis of a subsequent decision requiring such prosecutions to be brought within 12 months of the alleged act.[22] Speaking for the Court of Appeal, Sir Igor Judge P observed that change-of-law cases:[23]
… present issues of great sensitivity and latent tension. Those convicted on the basis of the old law assert that their convictions were based on an erroneous understanding of the criminal law and that they have therefore suffered an injustice. At the same time there is a continuing public imperative that so far as possible there should be finality and certainty in the administration of criminal justice. In reality, society can only operate on the basis that the courts administering the criminal justice system apply the law as it is. The law as it may later be declared or perceived to be is irrelevant. Change of law appeals create quite different problems from those which arise in the normal case where an individual was wrongly convicted on the basis of the law which applied at the date of conviction.
After canvassing relevant authorities the Court went on to say that:[24]
… the principle is that the defendant seeking leave to appeal out of time is generally expected to point to something more than the mere fact that the criminal law has changed, or been corrected, or developed. If the appeal is effectively based on a change of law, and nothing else, but the conviction was properly returned at the time, after a fair trial, it is unlikely that a substantial injustice occurred.
In Mr Cottrell’s case the Court noted that he had been found guilty of engaging in sexual activity with a girl aged 15 and in relation to which he had no defence. But for the change in charging practice, “it is clear that he would have been convicted”.[25] A “manifest injustice” would be done to the complainant if he were able to take advantage of the change of law that suited him. The only basis for the appeal was that of a change of law and the Court declined to extend time.[26] The Court concluded by noting that:[27]
The declaratory theory of the common law appears remote from the practical realities which should underpin the administration of criminal justice. Nevertheless the common law is not fossilised and one of its strengths is that it is indeed flexible and capable of development, and misconceptions and misunderstandings of legal principles can and should where necessary be corrected and elucidated.
[22]R v Cottrell [2007] EWCA Crim 2016, [2007] 1 WLR 3262.
[23]At [42].
[24]At [46].
[25]At [59].
[26]At [59].
[27]At [60].
We consider the essential question Knight and the corresponding English and Irish decisions pose is whether preserving finality of a judicial decision in a criminal case (here, a sentencing decision) in the face of later judicial recognition of evaluative error in that decision would work a substantial injustice. The authorities discussed above demonstrate that the answer to that question is not invariably affirmative. In many cases the measure of injustice is not such as to compel revisiting the earlier decision.
Should the extension be granted (and the sentence of preventive detention quashed)?
We hold that the retention of finality in the circumstances of this case would be objectionable and work a substantial injustice. Accordingly, we are satisfied that leave to appeal should be granted, the appeal allowed and the sentence of preventive detention quashed.
First, this case concerns simply the sentence that should have been imposed on an offender. Sentencing is an evaluative act by a Judge, consequent upon conviction. The conviction itself is not in issue here, unlike the cases discussed above. The merits are not muddied by evaluative and strategic decisions (for example, as to plea) made by a defendant himself on the path either to conviction or sentence. Mr Taylor seeks no unfair advantage — unlike the applicant in TheGovernor of Arbour Hill Prison.[28] He simply seeks the finite sentence that would have been imposed on him had it been appreciated at the time of sentencing that s 75 meant preventive detention should not be imposed on him at all because he was too young to qualify. And he seeks that he have the opportunity to submit his case to the Parole Board in the usual way, his eligibility unaltered by serving in effect two life sentences when one of those should not have been imposed at all. The other of course remains in place, unaffected by this appeal.
[28]See above at [13].
Secondly, the one potentially relevant action — or rather, inaction — of Mr Taylor was not to bring this application earlier. In 2005, when Mist was decided, Mr Taylor was advised that he might well have grounds to appeal, but he did not. In part that was attributed to not wishing to cause his family further distress by revisiting the events, and because he was in any event serving concurrently a life sentence for murder. Had he applied immediately, a strong case for revisiting a sentence imposed upon a flawed basis would have existed. Ultimately, however, we consider that the delay is explicable, does not represent any sort of formal election, and does not materially diminish the injustice of Mr Taylor serving a sentence which, had the law been correctly understood at the time, could not have been imposed.
Thirdly, we are informed that there is only one other serving prisoner, sentenced prior to Mist, who was under 21 years at the time of offending but received a sentence of preventive detention. No issue of “floodgates” being opened emerges, although it may be questioned whether a multiplicity of individual injustices can collectively diminish the case for correction. As Cooke J observed once, in Bowen v Paramount Builders Ltd:[29]
The arguments against allowing a cause of action in a case like the present tend to be largely either in terrorem or doctrinaire. The floodgates argument seems to me specious. If many meritorious claims follow, the desirability of the development is proved; who would now retreat from Donoghue v Stevenson … ? And the courts should be able to ensure that unmeritorious claims do not succeed.
[29]Bowen v Paramount Builders Ltd [1977] 1 NZLR 394 (CA) at 422.
Ultimately, we think it objectionable and unjust that Mr Taylor be compelled for the sake of finality to serve a sentence which, had the law been correctly understood at the time, would not have been imposed. Accordingly, that sentence must now be revisited and set aside. A finite sentence must instead be substituted.
What finite sentence should be substituted?
It is necessary to start with a more detailed description of the index offending. Shortly after midnight Mr Taylor picked up a 20‑year‑old prostitute in his car in downtown Auckland. After negotiating a price for sexual favours, she directed him to a nearby carpark. Mr Taylor reversed his car into a parking space, positioning the passenger door against the wall so it could not be opened. He produced a knife and held it against the complainant’s throat. He then took a length of rope and bound her hands tightly behind the passenger seat. He ripped off her underwear, forced her legs apart and, despite her protests, raped her. With the complainant still bound he drove towards West Auckland. She now feared further offending would occur, and tried to engage him in conversation. He untied her arms as they drove down the motorway, but kept the knife in his left hand. He drove 45 km to Muriwai Beach, where he parked the car on an isolated beach-access road. He told the complainant to get out. He remained in the car for a short time and then got out too. He told her he wanted to show her something. He tried to lure her onto a sand dune to “look at a big hole”. She made excuses and eventually they got back into the car. Mr Taylor drove to several other locations, before taking the complainant back to where her car was parked in the city. The total ordeal lasted an hour and a half. Mr Taylor was easily identified through his car and he was arrested two days later. The trial Judge described the evidence as “chilling”.[30] He said that on his view of the evidence the complainant “may well have been very lucky to survive”.[31]
[30]R v Taylor DC Auckland T422/96, 5 November 1997 at 4.
[31]At 4.
Mr Chisnall, on behalf of Mr Taylor, submits a starting point “in the vicinity” of 11 years’ imprisonment would be appropriate. A modest discount for Mr Taylor’s relative youth at the time of the offending should then be given. Ms Markham, for the Crown, suggests a starting point of 15–16 years is called for and that no discount for youth is appropriate.
Mr Taylor’s offending followed the 1993 increase in the maximum sentence for rape to 20 years. This Court’s decision in R v A applies, rather than R v AM (CA27/2009) which applies to offending committed before its delivery but not to appeals from sentences imposed before delivery.[32] Factors aggravating the offending here include that: the offending was premeditated (Mr Taylor brought a knife and rope with him); he held a knife to the complainant’s throat and threatened her; the complainant was detained in the car by force and threats; the complainant was made vulnerable by being incapacitated; and the detention of the complainant lasted approximately an hour and a half. There are no mitigating factors in relation to the offending.
[32]R v A [1994] 2 NZLR 129 (CA); and R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
We will refer to two arguably comparable cases involving abduction and sexual violation. In Johnston v R this Court adopted a starting point between 12 and a half and 13 years’ imprisonment for the abduction, physical abuse and sexual violation of a 15-year-old girl.[33] The offending was not planned and did not have the macabre and chilling overtones present in this case. In Apperley v R the appellant went to a friend’s house and found a 15-year-old girl at the address.[34] He assaulted her, threatened her with a knife, tied her up and drove her to his home where he raped her at knifepoint. He left her for a time after tying her up and taping her mouth. He returned, cut her clothing with a knife and sodomised her. He then dropped her at a friend’s house. A starting point of 16 years was upheld by this Court.[35]
[33]Johnston v R CA402/94, 20 March 1995.
[34]Apperley v R CA450/98, 13 May 1999.
[35]At [16] – [17].
In our view the seriousness of the present offending lies between these two precedents, and calls for a starting point of 14 years’ imprisonment. That figure reflects an uplift for the abduction offence committed at same time as the rape.
Mr Taylor seeks a discount for youth. We decline to give credit in this case. As this Court has observed, “youth alone does not automatically justify leniency”.[36] Youth discounts in sentencing are justified on the basis of the offender’s prospects to reform and rehabilitate.[37] They reflect what is usually impulsive, ill thought-through conduct.[38] Here the conduct was planned and formed part of a sequence of threatened, and then effected, violence towards women culminating in the commission of a sexually motivated murder while on bail pending trial for the present charges.
[36]R v Accused (CA265/88) [1989] 1 NZLR 643 (CA) at 655.
[37]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77(c)].
[38]At [77(a)].
No other personal mitigating or aggravating factors are relied upon. It follows that a sentence of 14 years’ imprisonment is to be substituted for the quashed sentence of preventive detention.
Conclusions
In resolving the tension between the competing principles of retrospective declaration of the common law and the finality of judgments, the essential question is whether preserving finality of a criminal decision (here, a sentencing decision) in the face of later judicial recognition of evaluative error in the composition of that decision would work a substantial injustice. The answer to that question is not invariably affirmative. In many cases the measure of injustice is not such as to compel revisiting the earlier decision.
In Mist the Supreme Court declared that s 75 of the Criminal Justice Act did not permit an offender below the age of 21 years at the time of the index offending to be sentenced to preventive detention.[39] In doing so it reversed previous authority relied upon by the Judge here in sentencing Mr Taylor to preventive detention at a time when he was just 20 years of age. We have concluded that not revisiting that sentence now would be distinctly unjust, in terms laid down by this Court in Knight.[40]We reach that view despite Mr Taylor’s earlier decision not to seek leave to appeal, and delay in bringing this application. The necessary consequence is that Mr Taylor’s sentence of preventive detention, imposed upon him when it should not have been according to the true interpretation of s 75, must be set aside.
[39]See above at [2].
[40]See above at [10].
Instead a sentence of 14 years’ imprisonment is substituted. In setting that sentence we have expressly declined to grant a discount for youth given the conduct was planned and formed part of a sequence of violence towards women culminating shortly thereafter in the commission of a sexually motivated murder of a second woman.
We make two final points. First, no suggestion was made to us that Mr Taylor may now be entitled to compensation for false imprisonment. He has throughout been detained upon warrants lawfully issued, including for a life sentence served concurrently for other offending, and the delay in quashing the preventive detention sentence has been wholly a consequence of his own delay. Secondly, the alteration to Mr Taylor’s sentence will not mean he must be immediately released. Although his finite sentence for rape and kidnapping has now expired, he remains a serving prisoner on a life sentence for murder. Should he be granted parole in the future by the Parole Board he will remain subject to recall for the term of his natural life, and his release conditions will be similar to those applicable to parole following a sentence of preventive detention.
Result
The application for an extension of time to appeal is granted.
The appeal is allowed.
The sentence of preventive detention is quashed and a sentence of 14 years’ imprisonment is substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
10