Taylor v The Queen - [2014] NZCA 561

IN THE COURT OF APPEAL OF NEW ZEALAND

CA83/2014
[2014] NZCA 561

BETWEEN	JOHN DOUGLAS TAYLOR Appellant
AND	THE QUEEN Respondent

Hearing:	17 November 2014
Court:	French, Asher and Clifford JJ
Counsel:	B P Kilkelly for Appellant M G Wilkinson for Respondent
Judgment:	26 November 2014 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of two years and three months’ imprisonment is quashed and a sentence of one year and 10 months’ imprisonment is substituted.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

The appellant, John Douglas Taylor, pleaded guilty in the District Court to one charge of possession of cannabis for supply and eight charges of offering to supply cannabis. Mr Taylor was sentenced by Judge Crosbie to two years and three months’ imprisonment.[1] Mr Taylor now appeals that sentence as being manifestly excessive.

Mr Taylor’s offending – the facts

[1]R v Taylor DC Dunedin CRI-2012-005-444, 24 January 2014.

Mr Taylor’s offending came to light as a result of a police investigation into cannabis and cannabis oil offending in South Otago and Southland between April and December 2012. Mr Taylor’s brother, Bradley, an associate, John Gerrard, and a number of others also faced charges as a result of that investigation.
Mr Taylor originally faced 28 charges, comprising possession of cannabis for supply (x 1), conspiring to supply cannabis (x 1), offering to supply cannabis (x 17), possession of cannabis oil for supply (x 1), conspiring to supply cannabis oil (x 1) and offering to supply cannabis oil (x 7). Mr Taylor pleaded guilty to the possession of cannabis for supply charge and eight of the offering to supply cannabis charges, all of which involved Mr Taylor offering to supply cannabis to his brother Bradley or Mr Gerrard. The Crown offered no evidence as regards any of the cannabis oil offending or the rest of the offering to supply cannabis charges. All of the offending to which Mr Taylor pleaded guilty occurred in the two and half week period from 30 April to 17 May 2012.
The total amount of cannabis involved in Mr Taylor’s offending was approximately 14 ounces.
Mr Taylor bases his appeal, in part, on the proposition that the sentence he received was out of line with those imposed on some of his co-offenders, including his brother and Mr Gerrard.

The challenged sentencing decision

In sentencing Mr Taylor the Judge – based on R v Terewi – adopted a starting point of two years and four months.[2] He uplifted that by six months to take account of a number of previous convictions for cannabis offending and, after the discount for Mr Taylor’s guilty pleas, arrived at an end sentence of two years and three months’ imprisonment.[3]
[2]R v Terewi [1999] 3 NZLR 62 (CA).
[3]In sentencing Mr Taylor the Judge stated that the six month uplift to the two year four month starting point resulted in a sentence of 30 months, which when discounted for Mr Taylor’s guilty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taylor v The Queen

Details

AGLC: Taylor v The Queen [2014] NZCA 561
Case: [2014] NZCA 561
Decision Date: 26 November 2014 at 10.00 am

CaseChat Overview and Summary

In Taylor v The Queen, John Douglas Taylor appealed against his sentence of two years and three months’ imprisonment, imposed for possession of cannabis for supply and offering to supply cannabis. The case was heard by French, Asher and Clifford JJ in the Court of Appeal of New Zealand. The appellant argued that the sentence was manifestly excessive, particularly in comparison to the sentences received by his co-offenders. The legal issues before the Court were whether the uplift applied to the starting point sentence for the appellant's previous convictions was excessive, and whether the disparity between the appellant's sentence and the sentences of his co-offenders warranted a different outcome.

The Court found that the starting point and discount adopted by the Judge were appropriate, but the six-month uplift for the appellant's previous convictions was excessive. The Court considered that a two-month uplift would have been more appropriate. The Court also noted the appellant's medical condition and positive references, which warranted some discount. The Court found the disparity between the appellant's sentence and the sentences of his co-offenders to be concerning. Accordingly, the Court substituted a sentence of one year and ten months' imprisonment for the appellant.

In conclusion, the Court allowed the appeal and substituted the appellant's sentence of two years and three months' imprisonment with a sentence of one year and ten months' imprisonment. The Court considered that the uplift for the appellant's previous convictions was excessive, and the disparity between the appellant's sentence and the sentences of his co-offenders warranted a different outcome.

Orders