Taylor v The Queen

[2004] NZCA 283

IN THE COURT OF APPEAL OF NEW ZEALAND

CA178/04

THE QUEEN

v

BRIAN PAUL TAYLOR

Hearing:21 October 2004

Court:Glazebrook, Panckhurst, Gendall JJ

Appearances:  G J King and C J Milnes for Appellant

B M Stanaway for Crown

Judgment:22 November 2004 

JUDGMENT OF THE COURT

The appeal is allowed to the extent that -

(a)The sentence of two years imprisonment imposed on the charge of unlawful possession of a firearm, the first of the two charges involving firearms in the car following the police chase, imposed cumulatively, is quashed and replaced by a term of two years imprisonment to be served concurrently.

(b)The sentence of six years imprisonment on the charge of wounding with intent to cause grievous bodily harm to Mr Tako is quashed and replaced by a sentence of five years imprisonment, to be served cumulatively on the sentences (themselves cumulative) on the earlier driving and wounding charges that were being served at the time of Mr Taylor's sentencing by Wild J.

(c)The sentence of six years imprisonment on the charge of aggravated robbery relating to Mr Edwards, remains cumulative on the five year sentence of imprisonment imposed in relation to the charge of wounding with intent to cause grievous bodily harm to Mr Tako.

REASONS

(Given by Glazebrook J)

Introduction

[1]        Mr Taylor pleaded guilty to charges of aggravated robbery, wounding with intent to cause grievous bodily harm (x2), participation in an organised criminal group (x2), unlawful possession of a firearm (x3), assault and demanding with menaces. He was sentenced by Wild J in the High Court at Wellington in April this year to an effective period of 14 years imprisonment. He appeals against that sentence.

Background

[2]        Mr Taylor’s convictions relate to incidents that occurred in 2002 and 2003, most involving “warfare” between the Black Power and the Mongrel Mob. At the time of the offending, Mr Taylor was the president of the Mangu Kaha chapter of the Black Power gang.

The first incident

[3]        The first incident, which led to the charge of wounding with intent to cause grievous bodily harm, occurred on 3 November 2002. Mr Taylor and other members of Black Power “taxed” a motor vehicle belonging to a member of the Mongrel Mob from an address in Palmerston North. “Taxing” is where property is taken from a person over some perceived debt owed by that person to the gang.

[4]        The victim in this incident, Mr Tako, along with the vehicle owner and approximately six other Mongrel Mob associates, ascertained where the car was being held and at about 8 pm they drove in three vehicles to that address. As Mr Tako walked towards the address, Mr Taylor fired shots at him from an upstairs bedroom with a .22 calibre rifle fitted with a telescopic sight, hitting Mr Tako just below the knee. Mr Taylor fired further shots at Mr Tako as he retreated to his vehicle, with at least one hitting and penetrating the car door as the group attempted to leave the scene. Mr Tako subsequently underwent surgery for the removal of the bullet and was hospitalised for three weeks. He was required to wear a leg brace for three months. Although the police investigated the incident, they were not able to lay any charges at the time. This charge resulted from Mr Taylor admitting the incident after he was arrested on the other charges.

The second set of incidents

[5]        The second spate of offending, consisting of three incidents, occurred over the nights of 4 and 5 February 2003. These incidents resulted in the charges of aggravated robbery, demanding with menaces, participation in a criminal group and assault. The first incident is referred to as the “Moore” incident. At about 2 pm on 4 February Mr Taylor and two others went to the home of Mr Moore and demanded that he pay $200 or hand over his motor vehicle as payment of a debt to Mr Taylor. The perceived debt arose as a result of Mr Moore’s sons “bad mouthing” Mr Taylor. When Mr Moore refused, Mr Taylor and his associates hit Mr Moore over the back of his head and punched him in the face and body, causing a black eye. Mr Taylor and his associates left after threatening to return later in the week and take property or to “kick his fucking head in”. Mr Moore was visited and threatened twice more that week by associates of Mr Taylor seeking payment.

[6]        The second of this group of incidents occurred later that night. Mr Taylor along with Mr Clegg, Mr Epapara and Mr McGregor, all members or close associates of Black Power, went to the home of Mr Edwards, a member of the Mongrel Mob, in order to exact retribution for the shooting of a Black Power prospect the year before. They went into Mr Edwards’ home armed with a sawn off shotgun, beat up Mr Edwards and stole his leather jacket onto which his gang patch was sewn. The jacket was valued at about $300.

[7]        The third of the group of incidents occurred at about 3 am. Mr Taylor and the three others involved in the earlier incident drove to the address of Mr Sua, president of the local Mongrel Mob. Mr Taylor and Mr Clegg enticed Mr Sua to the back door by pretending to be fellow Mongrel Mob members. One of the associates fired a buck shot at Mr Sua through perspex sheeting. Mr Sua was hit in the upper thigh/waist area. Immediately after the first shot a second shot was fired which just missed striking Mr Sua. This round was a solid slug. Mr Taylor and his three associates fled the scene. Mr Sua was admitted to hospital but he has, however, no lasting effects from the gun shot wounds.

The third incident

[8]        The third incident occurred on 2 May 2003 and led to two charges of unlawful possession of a firearm. After the incidents outlined above, Mr Taylor left Palmerston North in order to evade the Police. He returned on or about 30 April 2003. At approximately 11am on 2 May Police spotted Mr Taylor driving in Palmerston North with his girlfriend and an associate. The Police indicated that Mr Taylor was to stop. Mr Taylor failed to stop and a police chase ensued. In the course of the chase Mr Taylor drove into oncoming traffic, forcing motorists to take evasive action, drove on a footpath, on grassed railway land and over the median strip. Mr Taylor finally came to a stop when he crashed into a Police vehicle that was blocking his path. Mr Taylor was found to be in possession of a cut down .22 calibre rifle and a sawn off shotgun. We note that Mr Taylor was sentenced in the District Court in July 2003 to two years three months imprisonment for driving charges relating to this car chase.

The fourth incident

[9]        When Mr Taylor was arrested on the other charges, he admitted that a sawn off shotgun that had been found on 7 February 2003 concealed in a hedge by a road maintenance worker that day was his. This led to a further charge of unlawful possession of a firearm.

PRE-SENTENCE REPORT

[10]     The pre-sentence report for Mr Taylor said that Mr Taylor had been in prison for over a year and showed signs of institutionalisation and depression. The report noted that Mr Taylor had suicidal thoughts and that these pervaded his every moment. The report also said that Mr Taylor was well aware of the risk he faced of summary justice from gang members. It also noted that Mr Taylor was not coping with being in a prison far from his whanau, including his two year old daughter now being cared for by his mother. The report writer indicated that, if Mr Taylor had really given up his gang connections, then there is some hope for the future.

LETTER FROM MR TAYLOR

[11]     The Judge also had available at sentencing a letter from Mr Taylor. In that letter Mr Taylor expressed his shame and remorse with regard to the offending. He explained that he became a fully patched member of the Black Power gang and then President within two months. He had never been required to be a prospect because the chapter was a newly constituted one, set up to counter the activities of the Mongrel Mob in the community. Mr Taylor said that he now realised that his actions in this regard were inappropriate and that he was wishing to make changes in his life. He had therefore left Black Power and this was causing difficulties with his old gang as well as the ongoing difficulties with the Mongrel Mob members.

The sentence

[12]     In sentencing Mr Taylor, the Judge first looked at the appropriate sentence for each incident independently.

The first incident

[13]     With respect to the charge of wounding causing grievous bodily harm arising out of the first incident, the Judge considered the offending to fall within the most serious category identified by the Court of Appeal in R v Hereora [1986] 2 NZLR 164. Accordingly, the Judge deemed a six-year period of imprisonment to be appropriate, adopting a starting point of nine years imprisonment. The aggravating features identified were the fact that the incident involved gang warfare, it was a deliberate, premeditated shooting from a concealed position using a rifle fitted with a telescopic sight, it caused reasonably serious injuries, and the shooting took place in a suburb potentially endangering other residents. The Judge allowed a discount of three years for Mr Taylor’s confession and for his guilty plea.

The second set of incidents

[14]     With respect to the charges arising out of the Moore incident, the Judge imposed a sentence of six months imprisonment for assault and two years imprisonment for demanding with menaces. Both sentences took into account Mr Taylor’s guilty plea.

[15]     The Judge considered the Edwards incident, which gave rise to the charge of aggravated robbery, to be the most serious of the second group of incidents, and a sentence of six years’ imprisonment was imposed. Relying on R v Mako [2000] 2 NZLR 170, the Judge adopted a starting point of nine years’ imprisonment. The Judge identified the aggravating features as being that the incident involved going into Mr Edwards’ home, that there were a number of offenders, and that Mr Taylor was armed with a shotgun. The mitigating features were that relatively little in value was taken and Mr Taylor’s guilty plea. For those the Judge allowed a discount of three years.

[16]     The Judge was of the opinion that the charge relating to wounding with intent to cause grievous bodily harm to Mr Sua fell within a similar category to the shooting of Mr Tako. The Judge imposed a starting point of eight years imprisonment, one year less than that applied in the Tako incident, to take account of the fact that the injuries inflicted were less serious, and reduced that by two years for Mr Taylor’s guilty plea.

[17]     On the first charge of participation in a criminal group (associated with the Moore incident), the Judge took a starting point of three years’ imprisonment, and reduced it by one year for Mr Taylor’s guilty plea. In fixing that sentence the Judge looked at R v Toman HC WN T025588 18 December 2003 and R v Eriha HC  WN CRI 2003 009 11818 5 December 2003. The Judge regarded the offending in those cases to be less serious than the sort of violence in the current case, which involved serious violent crime. Mr Taylor was convicted and discharged on the other charge of participation in a criminal group.

The third incident

[18]     The Judge imposed a sentence of two years imprisonment for the third incident, which involved two charges of unlawful possession of a firearm. Roberts v Police (1993) 10 CRNZ 451 and Shailer v Police HC INV AP 37/95 29 May 1996 were considered in reaching a starting point of three years. The aggravating factors relating to this incident included the nature of the firearms found and the fact that they were related to gang warfare type offending. This was reduced by one year to take into account Mr Taylor’s guilty plea.

The fourth incident

[19]     On the charge relating to the firearm in the hedge, the Judge convicted Mr Taylor and discharged him without penalty.

Overall sentence

[20] In assessing the overall sentence, the Judge noted the need to impose a total effective sentence that reflected the totality of Mr Taylor’s offending. We note that in January 2004 Mr Taylor had been sentenced to a term of imprisonment of two years nine months for wounding with intent to be served cumulatively on the sentence of two years three months imprisonment for the driving offences, described above at [8]. The wounding offence took place in prison and, as Mr King informed us, was essentially a continuation of the gang warfare.

[21]     Wild J imposed a sentence of six years imprisonment in relation to the first incident, cumulative on the sentence Mr Taylor was already serving. He then imposed a cumulative further six years for the Edwards incident and two years cumulative on one of the firearms charges with the sentences for the remaining charges to be served concurrently. This meant that Mr Taylor was sentenced to a total effective term of imprisonment of 14 years. The Judge provided the following table to summarise the sentence imposed.

Incident	Charge	Penalty	Concurrent	Cumulative
1st	Wounding with intent to cause grievous bodily harm (Mr Tako)	6 years	Ö *
2nd	Aggravated robbery (Mr Edwards)	6 years	Ö
2nd	Wounding with intent to cause grievous bodily harm (Mr Sua)	6 years	Ö
2nd	Participation in an organised criminal gang (Mr Moore)	2 years	Ö
2nd	Participation in an organised criminal gang (Mr Sua)	Convicted and discharged without penalty
2nd	Assault (Mr Moore)	6 months	Ö
2nd	Demanding with menaces (Mr Moore)	2 years	Ö
3rd	Unlawful possession of a firearm (first of the two charges involving firearms found in your car following the chase and crash)	2 years	Ö
3rd	Unlawful possession of a firearm (second charge)	2 years	Ö
4th	Unlawful possession of a firearm (the firearm found in the hedge)	Convicted and discharged
Total effective sentence  14 years

*Cumulative upon the sentences (themselves cumulative and totalling 5 years) you are currently serving.

[22]     The Judge did not consider a minimum non-parole period to be appropriate in this case, citing as his reason Mr Taylor’s prospects of rehabilitation. Finally, the Judge ordered the destruction of the various firearms that were seized.

Appellant’s submissions

[23]     Mr King appeared on the appeal for Mr Taylor. His main submission was that, while the individual sentences were largely unexceptional, the overall sentence, being cumulative on the prison sentences already being served, was an effective sentence of 19 years, not 14 years. He submitted that the Judge failed to apply the totality principle correctly, thus resulting in an overall effective sentence that was wrong in principle and manifestly excessive.

[24]     Mr King made a number of more detailed criticisms of the Judge’s approach. First, he submitted that the Judge departed from the totality principle when he made the two year sentence for the firearm charges cumulative upon the time Mr Taylor was already serving. It was argued that the Judge failed to appreciate that the sentence Mr Taylor was already serving included four offences relating to the police chase of 5 May 2003, from which the firearms charges arose.

[25]     Mr King’s next submission was that the sentence imposed was significantly disparate to that imposed on Mr Taylor’s co-accused, Mr Clegg. Mr Clegg faced charges of wounding with intent to cause grievous bodily harm, aggravated robbery and participation in an organised gang, with respect to the incidents involving Mr Edwards and Mr Sua. Mr Clegg was sentenced by MacKenzie J to five and a half years imprisonment on the wounding charge, five and a half on the aggravated robbery charge and 18 months and two years respectively for the two charges of participating in an organised criminal gang. All sentences were imposed concurrently.

[26]     Mr King acknowledged that it was uncertain whether in fact Wild J had imposed  cumulative terms for the Edwards/Sua offending in that the 12 years could be seen as the accumulation of the Edwards and Tako sentences, with the Sua sentence being effectively concurrent with the Edwards sentence. However, if the Edwards sentence could be seen as cumulative on the Sua sentence, Mr King submitted that effectively Mr Taylor received a 12 year term, whereas Mr Clegg received just five and a half years imprisonment for the same charges.

[27]     Mr King also submitted that the Judge did not give sufficient credit for the mitigating features present in the case. First, he argued that the Judge erred when imposing a cumulative six year term of imprisonment on the charges relating to the incident involving Mr Tako as it failed to recognise Mr Taylor’s significant co‑operation and assistance with police, absent which the charges would not have been lain. Mr King cited Senior v Police (2000) 18 CRNZ 340 as authority for the proposition that, where an offender has volunteered to the police an admission in relation to an offence which the police would not have otherwise solved, that is a far more significant mitigating factor than a plea of guilty. He submitted that the credit of two years for the guilty plea and one year for the confession was manifestly inadequate and that a discount of three years for the confession plus further discount for the guilty plea and other mitigating features ought to have been given. Mr King further submitted that the Judge erred in not taking into account mitigating features, apart from the guilty plea and co-operation with the police, such as Mr Taylor’s prospects of rehabilitation, significant insight into his offending and remorse.

Crown submissions

[28]     Mr Stanaway, for the Crown, submitted that the total effective sentence of 14 years was neither manifestly excessive nor inappropriate. More specifically, he submitted that adequate weight was given to the totality principle and that the sentences imposed gave adequate weight to Mr Taylor’s personal circumstances and other mitigating features.

[29]     Commenting on the issue of totality, the Crown rejected Mr King’s submission that the Judge did not appreciate that Mr Taylor was already serving a term of imprisonment on “related offending”. In the Crown’s submission the Judge was well aware of the nature of Mr Taylor’s offending on 2 May and its relationship to the unlawful possession of firearms counts. The Crown said that the offending was discrete and, as such, the Judge was entitled to treat it as separate and warranting a cumulative term of imprisonment on the firearm charge. The Crown submitted further that Mr Taylor’s calculation that the effective sentence is one of 19 years and not 14 years does not take into account that two years and nine months of the existing sentence related to a count of wounding with intent to cause grievous bodily harm committed whilst in prison.

[30]     With respect to the disparity of sentence between Mr Taylor and Mr Clegg, the Crown submitted that the disparity arose from an error in the sentencing of Mr Clegg whereby the Judge imposed a concurrent sentence rather than a cumulative sentence. Mr Taylor should not benefit from such an error. The Crown noted that Mr Clegg was also given an additional six months credit for his early guilty plea which acted as a catalyst for the pleas which followed.

Discussion

[31]     In our view, the total effective sentence imposed on Mr Taylor was manifestly excessive, taking into account the totality principle and that the sentences imposed by Wild J were cumulative on the sentences of imprisonment already being served.  We note that the offending, arising as it did out of gang rivalry (including the wounding with intent in prison), can in any event all be seen as related. We also note that there does appear to be some prospect of rehabilitation for Mr Taylor and it is important that the sentence imposed should not be so long that is crushes any such prospect.  

[32]     Taking now the individual points made by Mr King, we accept his submission that the discount given for the assistance to the police with regard to the Tako offending was too low. It is clear that, without Mr Taylor’s confession, the crime would not have been solved. The three year discount given for the assistance and the guilty plea was the same as that given with regard to the Edwards incident where there was no such assistance. We consider, therefore, that the sentence imposed on the Tako incident should have been five years imprisonment and not six years.

[33]     With regard to the disparity with the sentence imposed on Mr Clegg, as indicated above at [26], Mr King accepted that the Edwards sentence can effectively be seen as cumulative on the Tako sentence and not cumulative on the Sua sentence. We are of the view, therefore, that there is no disparity. We do note, however, that, on a stand alone basis, a sentence of over six years (and possibly even one of 12 years) would have been appropriate for the Edwards and Sua incidents.

[34]     With regard to the first of the firearms charges arising after the car chase, we accept the Crown submission that the offending was discrete from the driving offences. As this is the case, normally a cumulative sentence would not have been disturbed.   In this context, however, where the totality principle must be taken into account, we are of the view that the sentence imposed for this offence should have been concurrent and not cumulative.    

CONCLUSION

[35]     The appeal should thus be allowed to the extent that -

(a)The sentence of two years imprisonment imposed on the charge of unlawful possession of a firearm, the first of the two charges involving firearms in the car following the police chase, imposed cumulatively, is quashed and replaced by a term of two years imprisonment to be served concurrently.

(b)The sentence of six years imprisonment on the charge of wounding with intent to cause grievous bodily harm to Mr Tako is quashed and replaced by a sentence of five years imprisonment, to be served cumulatively on the sentences (themselves cumulative) on the earlier driving and wounding charges that were being served at the time of Mr Taylor's sentencing by Wild J.

(c)The sentence of six years imprisonment on the charge of aggravated robbery relating to Mr Edwards, remains cumulative on the sentence imposed in relation to the offending in relation to Mr Tako.

[36]     Wild J’s concurrent sentences on all the other charges remain. This makes an effective sentence of 11 years imprisonment in relation to the offences that are the subject of this appeal. That sentence of 11 years imprisonment is to be served cumulatively upon the sentences (themselves cumulative) on the earlier driving and wounding charges that were being served at the time of Mr Taylor’s sentencing by Wild J.

Solicitors:

Crown Law Office, Wellington