Taylor v The King
[2024] NZHC 3524
•22 November 2024
NOTE: PUBLICATION OF DETAILS OF THE APELLANT’S PREVIOUS CONVICTIONS PROHIBITED BY S 199A OF THE CRIMINAL PROCEDURE ACT 2011. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-000067
[2024] NZHC 3524
BETWEEN ARTHUR WILLIAM TAYLOR
Appellant
AND
THE KING
Respondent
Hearing: 20 November 2024 Counsel:
J J Rhodes for Appellant
C A Brook and D Lye for Respondent
Judgment:
22 November 2024
JUDGMENT OF RADICH J
[1] On 30 August 2024, having pleaded guilty, Arthur William Taylor was sentenced by Judge Mika to two and a half years’ imprisonment on seven charges of:1
(a)using a forged document;2
(b)supply of a Class B controlled drug (GBL);3
(c)conspiracy to supply a Class A controlled drug (methamphetamine);4
1 R v Taylor [2024] NZDC 22826 [Decision on appeal].
2 Crimes Act 1961, s 257(1)(b) (maximum penalty of 10 years’ imprisonment).
3 Misuse of Drugs Act 1975, ss 6(1)(c) and (2)(b) (maximum penalty of 14 years’ imprisonment).
4 Misuse of Drugs Act, s 6(2A)(a) (maximum penalty of 14 years’ imprisonment).
TAYLOR v R [2024] NZHC 3524 [22 November 2024]
(d)possession of a Class A controlled drug for supply (methamphetamine);5
(e)offering to supply a Class B controlled drug (GBL);6
(f)possession of a Class A controlled drug (methamphetamine);7 and
(g)breach of release conditions.8
[2] Mr Taylor appeals from the sentencing decision. He says that the starting points and uplifts adopted by the Judge were manifestly excessive. And he says that a further discount should have been applied for the time he spent in custody after being recalled by the Parole Board and for the period during which he was subject to electronic monitoring conditions.
The offending
[3] While the country was in Level 4 lockdown as a result of the COVID-19 pandemic, a person who used the name “Susannah Fong” emailed a vehicle rental company in Auckland inquiring about renting a vehicle for Mr Taylor, who claimed to be an essential worker.9
[4] At 11 am on 19 April 2020, Mr Taylor arrived at the car rental company to collect the vehicle. He was on parole at the time. He presented his driver’s licence and two letters to the owner of the company purporting to support his essential worker status. In one of the letters it was said that Mr Taylor was working for a law firm, and that both the firm and Mr Taylor were authorised to work and travel during the lockdown.10
5 Misuse of Drugs Act, ss 6(1)(f) and (2)(a) (maximum penalty of life imprisonment).
6 Misuse of Drugs Act, ss 6(1)(c) and (2)(b) (maximum penalty of 14 years’ imprisonment) (representative).
7 Misuse of Drugs Act, ss 7(1)(a) and (2)(a) (maximum penalty of six months’ imprisonment or
$1,000 fine or both).
8 Parole Act 2002, s 71 (maximum penalty of one year’s imprisonment or $2,000 fine).
9 Decision on appeal, above n 1, at [4]–[5].
10 At [6].
[5] The letters were forged.11 Mr Taylor was to have returned the rented vehicle on 21 April, but he did not do so. Attempts were made to contact him, but he did not respond. He returned the vehicle on 24 April.12
[6] The drug charges 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. One of the targets of the investigation was an associate of Mr Taylor. I will refer to him simply as “the associate”. He was arrested on 19 April 2020 for involvement in offences relating to the supply of methamphetamine.13
[7] During the interception of the associate’s communications, a number of communications were recorded between the associate and Mr Taylor. Mr Taylor offered GBL to the associate. He discussed how much he had and how much he could get. He supplied GBL to the associate on one occasion.14
[8] At about 10 pm on 5 June 2020, Police arrested Mr Taylor at his home address in Wellington. A parole recall warrant had been issued that day. Police found a small bag of methamphetamine in the pocket of his jacket. His cell phones were seized, and Police established that he had used five different SIM cards on one of the phones. Mr Taylor had received requests for methamphetamine and for GBL from various people and had sent messages offering to supply those drugs.15
[9] Analysis of Mr Taylor and the associate’s cell phones identified the following offences:16
(a)On 4 January 2020, Mr Taylor supplied 200 millilitres of GBL to the associate.
(b)On 26 January 2020, Mr Taylor offered to supply an unspecified amount of GBL to the associate.
11 At [7].
12 At [7].
13 At [8].
14 At [9].
15 At [10].
16 At [13]–[14].
(c)On 17 April 2020, Mr Taylor offered to supply an unspecified amount of GBL to another person.
(d)On 18 April 2020, Mr Taylor offered to supply one litre of GBL to the associate.
(e)On 24 April 2020, Mr Taylor offered to supply an unspecified amount of GBL to one other person, and on the same day also offered to supply one litre of GBL to another person.
(f)On 7 May 2020, Mr Taylor offered to supply $50 worth of GBL to another person; it was approximately five millilitres.
(g)Between 9 April and 23 May 2020, Mr Taylor conspired with another associate, to supply six grams of methamphetamine.
(h)On 12 April 2020, Mr Taylor was in possession of eight grams of methamphetamine for the purposes of supply.
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.
Decision on appeal
[11] Before setting the starting point, the Judge said that time spent in custody and time on EM bail during the investigation of the offending is something for the Parole Board to consider.17
[12] Three aggravating factors were identified for the five drug charges. First, there was a level of premeditation.18
[13] Secondly, the offending was frequent. Mr Taylor offered to supply two litres of GBL on a number of occasions and was found in possession of eight grams of methamphetamine. He had, in addition, conspired to supply a further six grams of methamphetamine.19 The quantities suggested some commerciality, but at a low level.20
[14]Thirdly, the offending took place over six months.21
[15] The Judge found that Mr Taylor’s methamphetamine offending fell within the lower end of band two in Zhang,22 with a starting point range of two to nine years’ imprisonment. The GBL offending was viewed as a “smaller operation” with a starting point of up to five years’ imprisonment.23
[16] With these considerations in mind, the Judge fixed a four-year starting point for the drug charges.24
[17] From there, an eight-month uplift was applied for the forgery charge. This offending was seen by the Judge to involve premeditation and planning, and as causing harm and stress to the owner of the rental company. And the owner suffered a $1,800
17 Decision on appeal, above n 1, at [19].
18 At [22].
19 At [23].
20 At [24].
21 At [25].
22 At [26]; Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
23 At [26]; I note the Judge gave regard to R v Wallace [1999] 3 NZLR 159 (CA) in reaching this conclusion.
24 At [27].
loss for late return and damage to the car.25 A further uplift of two months was applied for the breach of release conditions,26 and another two months’ uplift was applied for Mr Taylor’s previous convictions.27 This brought the starting point to five years’ imprisonment.28
[18] The Judge gave a 25 per cent credit for Mr Taylor’s guilty pleas.29 Although the matter had been before the Court for some time, Mr Taylor pleaded as soon as charges had been resolved.
[19] The Judge acknowledged Mr Taylor’s addiction to methamphetamine, as set out in his alcohol and drug report.30 While Mr Taylor had faced the addiction for some time, he had not undertaken rehabilitative treatment, but was willing to do so.31 Further mitigating factors were addressed in the s 27 report. The Judge was satisfied that there was clear connection between them and Mr Taylor’s offending.32 They included, in particular, his exposure to significant violence following his placement in care at the Epuni Boys’ Home.33 A further 25 per cent discount was given for factors addressed in the s 27 report, the alcohol and drug report, and Mr Taylor’s willingness to undertake rehabilitation.34
[20] All of this resulted in an end sentence of 30 months’, or two and a half years’ imprisonment.35
Approach on appeal
[21] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an
25 At [27]–[29].
26 At [30].
27 At [31].
28 At [32].
29 At [33].
30 At [34].
31 At [35].
32 At [35].
33 At [36]–[37].
34 At [38].
35 At [38].
error in the sentence imposed on conviction and a different sentence should be imposed.
[22] When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.36 It must be shown that there has been an error made by the sentencing Judge.37 The Court cannot “tinker” with a sentence imposed where that end sentence is nevertheless in range.38
Discussion
The drug charges
[23] For Mr Taylor, Mr Rhodes says that the starting point adopted by the Judge for the drugs charges was excessive. It is said that the scale of the methamphetamine operation was relatively limited, that a significant portion of the methamphetamine was never actually supplied and that Mr Taylor’s associate played a more significant role in the offending. Mr Taylor, it is submitted, was a low-level dealer and that more weight should have been given to evidence of his addiction. The methamphetamine offending, by itself, it is said, should have attracted a starting point near to the low end of band two—at around two years and three months’ imprisonment, having regard in particular to proportionality with the overall starting point for Mr Taylor’s accomplice, which was one of two years and six months for all of his methamphetamine charges.39
[24] Mr Rhodes says the GBL offending was a small, street-level operation involving the sale by Mr Taylor of GBL to fund his own habit. A nine-month uplift, he argues, was appropriate.
36 Tutakangahau v R [2014] NZCA 279 at [32]–[35].
37 Tutakangahau v R, above n 34, at [27].
38 R v Boyd (2004) 21 CRNZ 169 (CA) at [38].
39 The associate was facing two charges of supplying methamphetamine, one charge of conspiracy to supply methamphetamine, and one charge of possession of methamphetamine.
[25] The Crown says that the four-year starting point adopted was in range. The Judge placed the offending, correctly, it is said, in the lower part of the second band in Zhang. Mr Lye focuses on the quantity of methamphetamine supplied, saying that lower starting points can only be expected where the offender took on a lesser role.40
[26] The Crown submits that the nature and extent of Mr Taylor’s role in the offending is not clear on the facts and that there is conflicting material on whether Mr Taylor really is addicted to methamphetamine. Mr Taylor’s addiction, it is said, was taken into account in the 25 per cent discount given for personal mitigating factors, so care needs to be taken so as not to double-up. There is no basis, it is argued, to justify Mr Taylor receiving a materially lower starting point than that of his associate.
[27] The Judge was correct, the Crown says, to characterise the GBL offending as a smaller operation with commercial elements leading to a starting point of up to five years’ imprisonment. A starting point of about two years and six months for the GBL offending alone would, it is said, have been appropriate.
[28] I accept the submission for Mr Taylor that the four-year starting point adopted by the Judge for the drug offending is manifestly excessive. I see that a starting point of no more than three and a half years’ imprisonment for the drug charges would have been appropriate.
[29] 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. That placed the offending almost at the very bottom of band two of Zhang, which relates to offending involving five to 250 grams and gives a starting-point range of two to nine years’ imprisonment. Almost half of the quantity involved relates to the conspiracy charge, which has a lower statutory maximum penalty of 14 years’ imprisonment. Some adjustment to account for this is needed. As the Crown has
40 Zhang v R, above n 22, at [123]. The Crown has referred also to Joyce v R [2020] NZCA 124 at [6]; Clarke v R [2024] NZCA 199 at [11]; Constable v Police [2014] NZHC 2940 at [7]; and R v Rope [2016] NZDC 3762 at [8]. The appellant says the first of these cases involved considerably more methamphetamine and that the second two preceded Zhang. The cases are of relevance, but I have not found them to advance the assessment.
mentioned, it is difficult to find cases with similarly low quantities resulting in charges such as those involved here. However, several cases are helpful.
[30] In R v Keogh,41 Ms Keogh faced one charge of conspiring to supply methamphetamine and one charge of conspiring to supply GBL.42 The quantity of methamphetamine involved was 28 g, and the quantity of GBL involved was about 580 ml. Justice Gault said that a starting point for the methamphetamine offending— had the conspiracy been completed—would have been three years’ imprisonment. The starting point was reduced to two-and-a-half years’ imprisonment to account for the conspiracy charge. A six-month uplift was given for the GBL charge.
[31] In R v Griffiths,43 Mr Griffiths pleaded guilty to one charge of possession of methamphetamine for supply, and two representative charges of supplying methamphetamine. The total quantity involved was at least 119.25 grams. Mr Griffiths’ offending was fuelled in part by his addiction to methamphetamine, but it was commercial in nature, and he was in control of his “own” business and organised supply with his brother. Having come within the lower end of the “significant” role, Harvey J considered a starting point of four years’ imprisonment would be justified.
[32] In Scott v R,44 Ms Scott was facing a raft of charges, including 27 for offering to supply methamphetamine, four for supplying methamphetamine, and one for offering to supply ecstasy. The methamphetamine offending involved a total of about 50 g in total. Ms Scott was found to fall between the “lesser” and “significant” profile roles; while her offending was motivated in part by addiction, it was motivated also by financial advantage. No discrete uplift or sentence was applied for the ecstasy charge, and the starting point of four and a half years’ imprisonment for all of the drug offending was upheld on appeal.
[33] In my view, Mr Taylor’s offending falls between that in Keogh on the one hand and Griffiths and Scott on the other in terms of culpability and seriousness. While
41 R v Keogh [2021] NZHC 2677.
42 For clarity, I note that conspiring to supply methamphetamine has a maximum penalty of 14 years’ imprisonment, whereas conspiracy to supply GBL has a maximum penalty of 10 years’ imprisonment.
43 R v Griffiths [2023] NZHC 357.
44 Scott v R [2024] NZHC 1501.
Mr Taylor’s charges involve less methamphetamine than that in Ms Keogh’s case, they do involve more GBL. And Mr Taylor faces a greater number of charges than Ms Keogh did. Moreover, both of Ms Keogh’s charges were for conspiracy. That would warrant a higher starting point for Mr Taylor than for Ms Keogh. However, Mr Taylor’s offending involved significantly less methamphetamine than was the case for both Mr Griffiths and Ms Scott. And he faces fewer charges, and less serious charges, than did Ms Scott. While Mr Taylor faces more charges than did Mr Griffiths, several are at a lower level; Mr Taylor only faces one charge with a maximum penalty of life imprisonment, whereas Mr Griffiths was facing three charges of this kind.
[34] The level of offending falls to be considered also in the context of the nature of the role that Mr Taylor played in the drug offending. I see the Judge as being right to say that the offending falls within a lower level of the “significant” role in Zhang. As Mr Rhodes has said, Mr Taylor had little or no expected financial gain. It appears that, mostly, he was dealing small quantities of drugs by himself to fuel his own use. On that basis, it might be said that Mr Taylor is best placed in the “lesser” role category.
[35] However, he was operating in a self-managerial way and cannot be said to have become involved in drug dealing through naivety or exploitation. These features are consistent with his place in the lower end of the “significant” role category.45
[36] This conclusion provides further support for the view that Mr Taylor should have a starting point at the lower end of band two.
[37] I accept the submission for the Crown that no downwards adjustment should be made for the fact that most of the GBL involved related to the offering to supply charge. As the Court of Appeal in Malolo v R explained, the Misuse of Drugs Act 1975 does not distinguish “inchoate” offending, and the Act makes no distinction between inflicted and attempted harm.46 However, that does not affect the assessment I have made, based upon comparable cases and upon the nature and extent of Mr Taylor’s role in the operation.
45 Observing that precise categorisation is not strictly necessary. See, for example, Joyce v R, above n 40, at [20].
46 Malolo v R [2022] NZCA 399 at [17].
[38] I see the three and a half year starting point as being sufficiently aligned with the two and a half year starting point given to his associate by reason of the number of charges here and the fact that his associate was not facing charges for dealing a Class B controlled drug.
Use of a forged document
[39] Mr Rhodes says that an eight-month uplift was too high and that an uplift of six months would have been at the upper end of the available range, with reference to R v Varjan.47 It is said that the offending was not particularly sophisticated; it was motivated by a desire to avoid lockdown restrictions but not to obtain any other benefit. It is said that no significant loss occurred and that there was no evidence, or mention in the agreed summary of facts, of any damage to the car.
[40] The Crown says that the eight-month uplift was appropriate in circumstances in which the offending, while not complex, was effective. It is said that reparation was not ordered and that, as a result, any disputed facts are not significant.
[41] Mr Taylor’s culpability under this head should be assessed with reference to the relevant circumstances described by the Court of Appeal in R v Varjan:48
… the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[42] The circumstances in De La Hunt v R have some similarities to those here.49 Ms De La Hunt had forged a letter from an employer to support her application for a community-based sentence and for name suppression. She had been charged with forgery under s 256(1) of the Crimes Act 1961 which has a 10-year maximum penalty; as does the charge faced by Mr Taylor. On appeal, the High Court held that a starting point of 12 months would have been appropriate.50
47 R v Varjan CA97/03, 26 June 2003.
48 Above n 47, at [22].
49 De La Hunt v R [2014] NZHC 1144.
50 At [39].
[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, 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.
Breach of release conditions
[44] As mentioned already, no issue was taken by either party for the two-month uplift applied for the breach of conditions charge.
Conclusion on the starting point
[45] On the approach I have taken, the starting point for Mr Taylor on all of the charges would be four and a half years’ imprisonment. The Judge took a five-year starting point. The six-month difference is significant. Accordingly, I find that the overall starting point adopted by the Judge was manifestly excessive.
Personal factors
[46] For the defendant, it is accepted that the two-month uplift for previous convictions was appropriate. And it is said that the 25 per cent discount given for Mr Taylor’s background, addiction and the prospects of rehabilitation was appropriate.
[47] Mr Rhodes emphasises the point that Mr Taylor’s time in the Epuni Boys Home exposed him to [redacted], neglect, violence and criminalisation. He received no education, abuse was mental, [redacted]. He was taught by older boys how to commit crime. It left him with an anti-authoritarian view and a deep mistrust of the legal system. It made it difficult for him to be part of the community. It is said that his involvement in [redacted]. It is argued that Mr Taylor’s willingness to engage in alcohol and drug rehabilitation—not undertaken by him before—together with his
background factors showed that he has substantial insight into his offending and capacity for positive change.
[48] It is said, in addition, that discount should be given for the time that Mr Taylor spent in custody on recall, given that it is not time taken into account when calculating any subsequent sentence expiry date. Generally, a two-thirds credit is allowed.51 Two- thirds of 79 days is approximately two months (around 52 days). In addition, Mr Taylor spent 10 months on electronic monitoring with an overnight curfew and was compliant during this time. A total of about five months, it is said, would be appropriate to reflect his time on EM conditions and to account for the time spent in custody while recalled.
[49] The Crown says that a discount for time in custody following recall is unwarranted. Offending while on parole was not, it is said, an aggravating factor in the sentencing. The Crown argues that a two-month discount for Mr Taylor’s recall time would essentially nullify his two-month uplift for breach of his parole conditions and, accordingly, effect appropriately his culpability for the offending. Equally, it is said that time should not be credited for time spent on electronic monitoring conditions, which relates to other, separate, offending.
[50] The Crown sees the adjustments for personal factors applied by the Judge as being generous. It is said that he had a “double benefit” from the adjustments for personal factors together with the full guilty plea credit. The point was made that, while his background no doubt contributed to his offending, there comes a point when his background can have no impact.52 The Crown makes the point that, for a 68-year- old man with 152 convictions, this point must be fast approaching. However, as Mr Rhodes says, this is the first time that the particular personal factors mentioned here (the Epuni Boys’ Home in particular) have been taken into account. So, the Crown’s comments here may be premature.
[51] I see the two-month uplift for prior convictions as being appropriate. While Mr Taylor does have an offending history that might be described as colourful, his
51 Fane v R [2019] NZHC 408 at [48].
52 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [94].
most recent relevant conviction was a single conviction of conspiring to deal methamphetamine in 2012.
[52] I accept that the full 25 per cent discount for the guilty plea was appropriate. As Kós J put it in Rikihana v Police, a reduction in a charge can usually be taken as recognition that the accused acted reasonably in resisting the original charge.53 Here, the charges faced by Mr Taylor were reduced materially and amended by the Crown, and a plea was entered on that basis.
[53] The prospect of a credit for time spent in custody having been recalled is supported by the Court of Appeal’s decision in Thomas v R.54 There, the sentencing Judge had applied an uplift to account for offending while on parole and then a discount for the time spent in custody after having been recalled. The Court concluded that the uplift was excessive and was not balanced out by the discount given for the time spent on recall. It said “the net effect of the uplift and the discount applied by the Judge is that the risk of double punishment remained”.55
[54] A discount for time spent on recall need not be applied on a one-for-one basis.56 The objective is to avoid double punishment, bearing in mind also the fact that offending occurred while on parole. In line with the approach in Thomas, I see a two- month discount for time spent on recall as being justified.
[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.
[56] The 25 per cent discount applied by the Judge for personal mitigating factors is not challenged by Mr Taylor on appeal. Nor do I understand the Crown to be arguing that the discount rendered his sentence manifestly inadequate. I do agree that the discount was generous, given Mr Taylor’s age and his recidivism. It could be said that
53 Rikihana v Police [2013] NZHC 711 at [29].
54 Thomas v R [2020] NZCA 257.
55 At [21].
56 O’Carroll v R [2016] NZCA 510 at [30].
the total discount of approximately 20 per cent would have been in order. However, no adjustment needs to be made on this appeal.
[57] On the basis of the approach I have discussed, a final sentence of 26 months’ imprisonment results:
(a)starting point of three and a half years’ imprisonment for the drug charges (42 months);
(b)eight-month uplift for forgery charge (50 months);
(c)two-month uplift for breach of parole conditions (52 months);
(d)25 per cent (13 month) guilty plea discount (39 months);
(e)25 per cent (13 month) discount for personal mitigating factors (26 months);
(f)two-month uplift for previous convictions (28 months); and
(g)two-month credit for time spent in custody on recall (26 months).
Outcome
[58] For the reasons I have given, I have concluded that the final sentence imposed of two and a half years’ imprisonment was manifestly excessive. I allow the appeal and substitute a 26-month sentence.
Radich J
Solicitors:
Crown Law, Wellington for Respondent
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