Taylor v The King
[2025] NZCA 211
•4 June 2025 at 9.30am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA831/2024 |
| BETWEEN | ARTHUR WILLIAM TAYLOR |
| AND | THE KING |
| Hearing: | 2 April 2025 |
Court: | Katz, Brewer and Gault JJ |
Counsel: | Applicant in person |
Judgment: | 4 June 2025 at 9.30am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brewer J)
Introduction
Mr Taylor was sentenced in the District Court to two years and six months’ imprisonment on a range of charges, including supply of Class A and Class B drugs, and use of a forged document.[1] He appealed his sentence to the High Court. His appeal was allowed and his sentence was reduced to two years and two months’ imprisonment.[2] Mr Taylor’s view is that the High Court should have given him a greater reduction. He seeks leave to bring a second appeal against his sentence. Mr Taylor represents himself.
[1]R v Taylor [2024] NZDC 22826.
[2]Taylor v R [2024] NZHC 3524.
The right of appeal against a determination of a first appeal is governed by s 253 of the Criminal Procedure Act 2011. Leave is required and (in this case) must not be given unless we are satisfied that:[3]
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[3]Criminal Procedure Act 2011, s 253(3).
We take the factual background from the Crown’s submissions:[4]
3.On 19 April 2020, during the Level 4 COVID-19 lockdown, the applicant rented a car by emailing the car rental office from another address claiming to be an essential worker, and then presenting two forged letters, one of which claimed he was working for a law firm and was authorised to travel during the lockdown. He was charged with using a forged document.[5]
4.The applicant also faced a range of drugs charges.[6] These arose out of a Police operation in relation to the supply of controlled drugs in the Hawke’s Bay region between November 2019 and May 2020. Intercepted communications and later analysis of the applicant’s cell phone revealed that he had been supplying GBL, conspiring to supply methamphetamine, and possessing methamphetamine for supply. The methamphetamine offending involved a total of 14 grams; eight grams on the possession for supply charge and six grams on the conspiring to supply charge. The GBL offending involved 2.005 litres offering to supply, 200 millilitres actual supply, and a further three unspecified amounts of offer to supply. Due to this offending, he was also charged with breaching his release conditions.[7]
Mr Taylor’s submissions
[4]Footnotes in original.
[5]Crimes Act 1961, s 257(1)(b). Maximum penalty 10 years’ imprisonment.
[6]All under the Misuse of Drugs Act 1975: supply of GBL (s 6(1)(c) and (2)(b)); conspiracy to supply methamphetamine (s 6(2A)(a)); possession of methamphetamine for supply (s 6(1)(f) and (2)(a)); and offering to supply GBL (ss 6(1)(c) and (2(b)).
[7]Parole Act 2002, s 71. Maximum penalty one year’s imprisonment or $2000 fine.
Mr Taylor submits that his appeal involves a matter of general or public importance because Radich J in the High Court took account of an aggravating factor not included in the summary of facts to which he had pleaded guilty.
Mr Taylor submits also that a miscarriage of justice has occurred because Radich J made errors in his consideration of the District Court Judge’s calculation of the sentence (primarily by declining to reduce an eight-month uplift imposed for the forgery charge and not adjusting the sentence to account for time spent on restrictive bail conditions).
In a supplementary memorandum dated 12 March 2025, Mr Taylor seeks to advance as a further ground of appeal an issue not argued in the lower courts. It is that, having been found in possession of .57 grams of methamphetamine on 5 June 2020, he was charged both with breach of his release conditions and with possession of the methamphetamine. Mr Taylor submits that these charges are duplicitous and contrary to s 10 of the Crimes Act 1961:
10Offence under more than 1 enactment
…
(2)Where an act or omission constitutes an offence under 2 or more Acts other than this Act, the offender may be prosecuted and punished under any one of those Acts.
…
(4)No one is liable to be punished twice in respect of the same offence.
Mr Taylor submits that this proposed ground of appeal demonstrates a real possibility that a miscarriage of justice occurred at his trial which was not corrected on his first appeal. Therefore, an exception should be made to the general rule that on a second appeal applicants are limited to the grounds advanced in the first appellate court.
Discussion
We will decline Mr Taylor’s application. We are not satisfied that the proposed appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred. We can give our reasons briefly.
Matter of general or public importance
Mr Taylor is correct that where a defendant pleads guilty in reliance on a summary of facts, they are entitled to be sentenced in accordance with the summary. It is possible for a sentencing judge to have regard to aggravating factors not in the summary of facts but, usually, that would require giving the defendant a chance to apply to withdraw their plea of guilty or to seek a disputed facts hearing.
Here, Mr Taylor says there was an issue about damage to the car he rented and loss to the rental car company which was not in the summary of facts but which was mentioned in the victim impact statement. He submits this should not have been taken into account.
The simple point for us is that Radich J did not make a decision adverse to Mr Taylor based on the content of the victim impact statement. This is what the Judge said:[8]
[43] As I see it, an uplift of eight months for the forgery charge was within the available range. Mr Taylor’s behaviour cannot be minimised entirely. It had the potential to have adverse effect on public health and safety. His motivation to offend was that he simply did not want to have to follow the COVID-19 lockdown rules. As with Ms De La Hunt,[9] Mr Taylor’s offending was unsophisticated. The Judge could, in addition, have considered the losses explained by the company owner in his victim impact statement, notwithstanding that they were not in the summary of facts. But, in any event, I see the eight-month uplift as having been appropriate.
Miscarriage of justice
[8]Emphasis and footnote added.
[9]The Judge was referring to a comparable case: De La Hunt v R [2014] NZHC 1144.
The extent of the uplift for use of the forged document was fully argued before Radich J. His Honour discussed the arguments and reached the view that we have just quoted. We do not see any apparent error in the Judge’s reasoning.
Mr Taylor’s argument that a miscarriage of justice occurred because he was not given a discount for time spent on restrictive bail conditions cannot succeed. Radich J set out Mr Taylor’s parole history:
[10] Mr Taylor was released on parole on 11 February 2019, after serving 17 years in prison for various charges. His conditions would not apply beyond 12 June 2022. Parole conditions included electronic monitoring on a 10 pm to 6 am curfew. He was recalled on 5 June 2020, having been charged with possession of methamphetamine. He was released again on 20 July 2020, at which time he was placed on electronically monitored (EM) bail on a 10 pm to 6 am curfew. He was recalled again on 12 December 2020, following Police analysis of his phone and the laying of the drug supply charges. He was then released on 13 January 2021, and was on EM bail until 13 June 2022, at which point his parole ended, and the EM conditions were removed. He remained on bail simpliciter. In total, Mr Taylor spent 79 days in prison through having been recalled.
The Judge’s conclusion on the argument for discount was:
[55] But I do not see the basis for a further three-month adjustment for time spent on EM bail. Mr Taylor was put on EM bail because he had offended while on parole. The EM condition simply reflected the EM condition that had been in place in any event under his parole conditions.
There is no error in this outcome.
We turn to Mr Taylor’s argument that the charges of breach of release conditions and possession of methamphetamine are duplicitous. We put to one side that for an appeal to be advanced on this ground it would have to be an appeal against conviction.
Mr Taylor was charged under s 7 of the Misuse of Drugs Act 1975 for “possession” of a Class A controlled drug, and under s 71(1) of the Parole Act 2002 for “breach[ing], without reasonable excuse, … any special release conditions imposed by the [Parole] Board”. The special release condition was to not “possess, use or consume controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional”.
There is sufficient difference between the punishable acts of the two offences to displace the special plea: Mr Taylor possessed a Class A controlled drug; and Mr Taylor had special release conditions that he breached by possessing a controlled drug.[10] The acts are not duplicitous.
Decision
[10]See Mitchell v Police [2023] NZSC 104, [2023] 1 NZLR 238, where the Supreme Court held there was sufficient difference between a conviction for driving with excess breath alcohol with a charge of driving contrary to a zero alcohol licence. The difference between the common punishable acts were: the offender drove with a breath alcohol level above the legal limit; and he held a zero alcohol licence while he drove with breath containing alcohol. See also Henderson v R [2025] NZCA 147 at [17]–[25].
The application for leave to bring a second appeal is declined.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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