Tereitia Taylor-Harrison v The King
[2024] NZHC 3068
•21 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-419-000068
[2024] NZHC 3068
TEREITIA TAYLOR-HARRISON v
THE KING
Hearing: 3 September 2024 Appearances:
S McKenna for the Appellant L Glaser for the Crown
Judgment:
21 October 2024
JUDGMENT OF WALKER J
[Appeal against sentence]
This judgment was delivered by me on 21 October 2024 at 1 pm Registrar/Deputy Registrar
Counsel/Solicitors:
S McKenna, McKenna King, Hamilton
L Glaser, Hamilton Legal, Crown Solicitor Hamilton
TAYLOR-HARRISON v R [2024] NZHC 3068 [21 October 2024]
Introduction
[1] On 26 June 2024, Judge N D Cocurullo sentenced Mr Taylor-Harrison (along with two co-defendants) on a charge of aggravated robbery of a superette.1 The sentence imposed was 22 months’ imprisonment. In Mr Taylor-Harrison’s case, this was to be served cumulatively on an earlier sentence of three years and two months’ imprisonment for offending while on bail. The total sentence imposed on Mr Taylor-Harrison was therefore five years’ imprisonment.
[2] Mr Taylor-Harrison now appeals the sentence imposed on 26 June 2024. He acknowledges that, if taken in isolation the sentence is not excessive, but contends that because it was imposed cumulatively, the total sentence is wholly out of proportion to the gravity of the overall offending.
[3]The Crown opposes the appeal.
Background
[4] At the time of the offending Mr Taylor-Harrison was 18 years old. He had no prior convictions or Youth Court notations.
[5] On 21 January 2022, Mr Taylor-Harrison and his two co-defendants arrived at the superette in a stolen car. They covered their faces and hands and carried black rubbish bags. Mr Taylor-Harrison and one other began opening the cigarette cabinets behind the counter where the shop assistant was standing. The remaining co-defendant stood on the opposite side of the counter. The shop assistant activated the fog cannon. The three offenders ran from the store, each stealing ice cream from the freezer as they left.
[6] On leaving, they were confronted by two members of the public. There was a physical altercation. One of the members of the public tried to stop the trio leaving in a car. The driver (not Mr Taylor-Harrison) reversed it into one of the members of the public throwing him to the ground and then aimed at him a second time, hitting him
1 R v Chadwick [2024] NZDC 14655.
and forcing him up and over the bonnet. Somewhat miraculously, that victim suffered only bruising and scratching.
[7] Mr Taylor-Harrison was charged and bailed. While on bail, he along with four others then took part in a ram raid of Noel Leeming in a stolen car. While Mr Taylor-Harrison’s associates ran into the store, he broke into the car of the security guard who was sitting outside. He tried but failed to grab the security guard’s keys and cell phone and then punched him in the head at least six times, leaving him with a head wound.
[8] As a result of this subsequent offending, Mr Taylor-Harrison was sentenced (also by Judge Cocurullo), on 27 July 2023, to three years and two months’ imprisonment (38 months) on charges of injuring with intent to injure, unlawful taking of a motor vehicle and burglary.2 Notably, this was nearly 11 months before he was sentenced for the aggravated robbery offending even though that offending took place earlier.
[9] This prior sentence is not itself under appeal, but it is the combined effect of that sentence and the sentence of 26 June 2024 for the aggravated robbery which Mr Taylor-Harrison says engages the totality principle. He also advanced that submission before the sentencing Judge who duly noted the need to consider totality bearing in mind the earlier sentence.3 The nub of this appeal is whether sufficient and/or proper account was taken of that principle.
District Court decision
[10] The Judge adopted a starting point of four and a half years (equating to 54 months) for the aggravated robbery offending for all three defendants.4 In doing so, he relied on the guideline judgment of R v Mako.5 I pause to interpolate that in that case the Court of Appeal acknowledged that the range of conduct that can
2 R v Taylor-Harrison [2023] NZDC 15791.
3 R v Chadwick, above n 1, at [8] and [15].
4 One co-defendant was 18 years old, also with no prior convictions. The other co-defendant was 20 years old.
5 R v Mako [2000] 2 NZLR 170 (CA) at [34].
constitute aggravated robbery is very wide and it is the particular combination of variable factors that requires assessment in each case. Those factors include the degree of planning and preparation; the number of offenders and their respective roles; the concealing of identity which contributes to intimidation; the number and types of weapons; the targeted premises and potential gain; the presence of public; actual violence on top of threats and the property stolen.6
[11] The example in Mako most relevant to this appeal is the robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife, but with no actual violence. The Court said that the starting point should be around four years but if the shopkeeper is confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken, five years, and up to six years for “bad” cases, should be the starting point.7
[12] Returning to the sentencing of Mr Taylor-Harrison, the Judge acknowledged that there was no weapon in the offending before him but took account of the additional culpability factors highlighted in Mako which can lift the starting point to at least five years. One of these factors included that there were multiple offenders involved. He also noted there was a degree of planning and premeditation and that the victims were inherently vulnerable.8
[13] He then applied a total credit of 30 per cent, being 10 per cent for guilty plea, 10 per cent for youth and 10 per cent for “remaining mitigating features” not explicitly identified.9 Notably this total was slightly less than Mr Taylor-Harrison’s 18-year-old co-defendant who received 40 per cent plus further credit for time spent on EM bail. It was not explained why his co-defendant’s personal circumstances warranted different treatment.
6 R v Mako [2000] 2 NZLR 170 (CA) at [36]–[43].
7 At [56].
8 R v Chadwick, above n 1, at [11].
9 At [15].
[14] Mr Taylor-Harrison’s total credit equated to 17 months (rounded up).10 Accordingly the Judge arrived at a nominal end point of 37 months before turning to totality and the cumulative effect of the two sentences.11
[15] Recognising that the principle of totality required a significant reduction he reduced the 37 months to 22 months. He said:
[18] …There needs to be in my view a significant discount and accordingly on the aggravated robbery charge you are now sentenced to 22 months’ imprisonment and that is 22 months cumulative on top of that injuring injure (sic) CRN 2207200029. For the avoidance of any doubt that then means that over that and the injuring with intent to injure there is a total sentence of five years but there is added to your current sentence 22 months.
Relevant legal principles
[16] The Court must allow an appeal if it is satisfied that there was an error in the sentence imposed and that a different sentence should be imposed.12 Otherwise the Court must dismiss the appeal.13 The focus is on the end sentence. If the process by which a sentencing judge arrives at the end sentence was flawed but the sentence can nonetheless be properly justified by accepted sentencing principles, then an appeal court will not intervene.14
Grounds of appeal
[17]Mr McKenna, for Mr Taylor-Harrison, submits:
(a)the starting point identified was too high and out of the range available;
(b)the sentencing approach was incorrect because the adjustment for totality was undertaken at the wrong point;
(c)the totality adjustment was not sufficient; and
10 At [15].
11 At [18].
12 Criminal Procedure Act 2011, s 250(2).
13 Section 250(3).
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [36].
(d)a concurrent sentence should have been imposed instead of a cumulative sentence.
[18] No issue is taken with the discounts for guilty plea, youth, and other mitigating factors. There is no challenge to the global start point of 45 months reached for the Noel Leeming ram raid offending sentenced on 27 July 2023.15 Neither could this be challenged because no appeal was filed in respect of this sentence.
Analysis
Starting point
[19] Mr McKenna submits that a four and a half year starting point does not sit well with the guideline judgment of Mako and that an appropriate starting point should have been three and a half years (42 months). He says that the example given in Mako presupposed the demand of money from the till under threat of the use of a weapon before suggesting that the presence of multiple offenders would lift the suggested start point for such a scenario from four to five years. In this case, the trio were not armed and there were no explicit threats nor direct confrontation with the shop assistant, all factors which Mr McKenna contends, support a starting point under the four years suggested in Mako.
[20] Ms Glaser, for the Crown, submits that the Judge had regard to the fact that the offending did not include a weapon, but relied on other features such as multiple offenders, use of disguise, planning and premeditation and the inherent vulnerability of the victim (implicit in the presence of multiple offenders) all of which support a starting point of four years and six months.
[21] Guideline judgments are just that, guidelines. They assist the sentencing Judge in the difficult evaluative task they perform.16 They look over the sentencing Judge’s shoulder to ensure there is a “proper judicial evaluation of individual cases”.17 They
15 R v Taylor-Harrison, above n 2, at [17].
16 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [24].
17 Hessel v R [2010] NZSC 135, [2011], 1 NZLR 607 at [41].
do not replace sentencing discretion with a “mechanistic” box-ticking exercise.18 Nor do they override the exercise of sentencing discretion.
[22] In my view, the combination of features in this offending means that the four and a half year starting point, while stern, was within the available range. Consequently, this ground of appeal fails.
Approach to totality
[23] The purpose of the totality principle is to avoid the imposition of a sentence that is out of proportion with the gravity of the offending.19
[24] The totality principle is engaged where, as here, a sentence of imprisonment is being served and the sentencing court is to impose a further sentence for an offence committed before the offending which has already been sentenced.20 In Piao v R the Court of Appeal said:21
[22] …The court must at that point look at the offending and “criminal behaviour” in its totality and consider the appropriateness of the total sentence as if the offender was before the court for all the offences.
[25] Mr McKenna relies on Jacobson v R22 to submit that the Judge erred by considering totality at the end of the sentencing process, rather than at the adjusted global starting point stage. That is, prior to consideration of personal factors. As a result, by reducing the sentence on the aggravated robbery charge by 15 months but making it cumulative on the existing sentence, the overall sentence imposed was longer than if the consideration of totality was at an earlier stage of the analysis.
[26] I understand at the heart of Mr McKenna’s submission is the proposition that by considering totality at the end sentence stage (instead of considering what the appropriate overall global starting point should be), there is the risk that a
18 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [24], referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 64 at [48].
19 Sentencing Act 2002, s 85(2).
20 Piao v R [2020] NZCA 607 at [22].
21 Above n 21, citing R v Bradley [1979] 2 NZLR 262 (CA) at 263–264.
22 Jacobson v R [2023] NZHC 1358.
disproportionate response to the total offending is masked by the personal circumstances of the offender which warrant credit.
[27] Conversely, Ms Glaser submits that the global starting point should not be the focus in imposing cumulative sentences because it is overall culpability for the totality of the conduct which is in issue.
[28] There is a divergence of approach in this Court on the timing of the totality assessment.23 However in Polaapau v R, the Court of Appeal considered that it was appropriate to consider totality after the setting of an adjusted starting point.24 In Jacobsen v R, Campbell J agreed with this view, finding that the sentencing Judge had erred in considering totality at the end of the sentencing calculation:25
[14] …Totality should be considered before personal mitigating (or aggravating) factors are taken into account. The totality principle is that the overall starting point should not be wholly out of proportion to the gravity of the overall offending, whereas adjustments to the overall starting point reflect factors personal to the offender. If totality is considered only after allowances have been made for personal factors, there is a risk that the totality assessment is influenced by factors that are irrelevant to the gravity of the offending.
[29]In Haywood v R, the Court of Appeal said:26
[10] It is necessary to keep in mind the imperative of s 85(2). That imperative does not apply simply as an adjustment to the second cumulative sentence down but should reflect an overall assessment of a total period of imprisonment for the overall offending.
…
[11] Therefore, we do not think the end sentence should be approached sequentially as an adjustment of the appropriate end sentence of the burglary and assault in order to fit the totality principle. Rather, the analysis should be guided from the outset with the appreciation that the total period of imprisonment should be in proportion to the gravity of the overall offending. That is so even though technically the result is achieved by adjusting the second sentence, because the first sentence is already in place.
23 Dudley-Tough v R [2023] NZHC 3459 at [27]. Johnstone J considered that there was no error in failing to consider totality at the end of the first stage albeit he noted that the question of the timing of the totality assessment remains unsettled. As examples of considering totality at the last step in the sentencing process he cited R v Taylor [2007] NZCA 258 at [61]; R v Wu CA65/02, 18 June 2002 at [10]; and Webber v R [2012] NZCA 594 at [25].
24 Polaapau v R [2020] NZCA 227 at [44].
25 Jacobson v R, above n 23. (Footnotes omitted).
26 Haywood v R [2015] NZCA 551.
[30] The Court of Appeal has emphasised that it will not interfere, where the sentencing Judge has accurately assessed the overall criminality of the offender. It is the total effective sentence that is important – much more than the mechanics by which it is arrived at. In other words, it is not so much the steps by which the final result has been achieved, as a need to examine the final result in terms of fairness.
[31] I intend to follow the approach in Jacobsen and to consider totality as part of the starting point assessment. That is, I accept that the Judge erred by deferring the question of totality to the second stage. Whether that error is material remains to be seen.
[32] Mr McKenna makes the point that, because the Judge did not make the totality assessment at the first stage, he did not state the adjusted global starting point for all the offending taking into account totality. However, Mr McKenna submits that it may be “reverse engineered”, albeit recognising some difficulties caused by inconsistency of deductions or credits at each sentencing. He considers that working backwards from the 30 per cent credit applied to the end sentence of five years, the total global starting point for both sets of offending is seven years and two months.
[33] I do not accept the outcome of Mr McKenna’s analysis. In my assessment, the overall starting point adopted was six years and four months (rounded down), calculated as follows:
(a)Working backwards from the 30 per cent credit applied to the “adjusted for totality” sentence of 22 months for the aggravated robbery offending results in an “adjusted” start figure of 31 months (rounded down) or two years and seven months.
(b)Add it to the already known (and undisputed) stand-alone starting point of 45 months for the charges of injuring with intent to injure, burglary and unlawful taking of a motor vehicle.
(c)The total global starting point would be 76 months or six years and four months.
[34] The rationale for this method of calculation lies in the fact that different credits were applied at the first sentencing (15 per cent) than the second sentencing (30 per cent). Therefore, an accurate effective global starting point cannot simply be “reverse engineered” from the five year end sentence using a unilateral 30 per cent credit. It must be calculated separately as detailed above.
[35] Mr McKenna suggests that a more appropriate global start point should be one of five years and six months. In support of this submission he refers to Matkovich v Police27 and R v Eddington. 28 Both cases involved multiple aggravated robberies involving the use of weapons. In Matkovich the Court adopted a start point of six years and six months in respect of two aggravated robberies during which hockey sticks were swung at the shop assistant (in one instance hitting them). In Eddington, the Court considered a starting point of seven years was appropriate for two aggravated robberies. In the first, the defendant presented a knife and demanded cash from a Post Shop. During the robbery, he made five customers kneel on the floor. In the second, the defendant pointed a rifle at customers and staff before demanding cash. The Court considered that each robbery on a stand-alone basis would justify a start point of six years but on totality uplifted the start point by one year for both aggravated robberies to reach a global start point of seven years.
[36] Both Eddington and Matkovich involved more serious offending given the use of weapons and the threats to staff and customers. Regardless of the disparity in our respective calculations of the “effective” global start point adopted by the District Court Judge, I accept Mr McKenna’s submission that the global starting point in the case at hand must fall below these cases.
[37] Also cited in Matkovich were Maiko v R29 and R v Soane.30 In Maiko, the appellant was sentenced for three aggravated robberies, and driving offences. The first aggravated robbery of a petrol station involved the appellant holding the victim against a wall while his associate took cash from the till. The second aggravated robbery involved the appellant threatening the Duty Manger of a bar with a switchblade knife
27 Matkovich v Police [2021] NZHC 1660.
28 R v Eddington [2016] NZHC 434.
29 Maiko v R [2020] NZHC 2958.
30 R v Soane [2018] NZDC 12482
while his associate took cash from the till. The third aggravated robbery of a different petrol station involved the appellant threatening a staff member with the switchblade knife and forcing that staff member to hand over cash and cigarettes. A starting point of seven years’ imprisonment was adopted for these charges and was not challenged on appeal.
[38] In Soane the defendant was sentenced on two charges of aggravated robbery, one charge of wilful damage and one charge of assault with intent to rob. The first aggravated robbery involved the defendant and an associate robbing a superette of cigarettes, cash and the victim staff member’s cell phone. The defendant threatened the victim with a crowbar, kicked him three times to the leg and punched him twice to the head. The next aggravated robbery involved the defendant making a plan with four others to rob a superette for cigarettes. The defendant was armed with a crowbar and repeatedly struck a merchandise stand with it to scare away the victim staff member. He then loaded cash and cigarettes into a rubbish bag. A third attempted robbery involved the defendant and three associates entering a store armed with lengths of wood. The defendant grabbed a victim by the beard and sweatshirt and dragged him inside the store, where an associate struck him with a piece of wood. The other victims managed to defend themselves with brooms and drive the offenders out of the store before anything was taken.
[39] The Judge adopted a starting point of four years’ imprisonment for the first aggravated robbery and uplifted that by two years for the second making a total six years. The Judge also applied an uplift of two years for the charge of assault with intent to rob. The total starting point was therefore eight years’ imprisonment.
[40] Ms Glaser refers to Sagote v R31 as support for a global start point well above that advanced by Mr McKenna. Mr Sagote pleaded guilty to a charge of injuring with intent to injure and a charge of aggravated robbery (albeit of a home not a small retail establishment). A start point of six years was adopted for the aggravated robbery, uplifted by two years for the injuring with intent to injure charge. The total of eight
31 Sagote v R [2023] NZHC 1008.
years was adjusted for totality purposes resulting in a starting point of seven years imprisonment.
[41] Considering these comparator cases, I reach the view that a total global starting point of six years is more appropriate in respect of the features of Mr Taylor-Harrison’s offences.
[42] Mr McKenna’s submission is that the approach to sentencing ought to have been:
(a)Consider the start point on each individual set of offending.
(b)Consider totality by standing back and adjusting accordingly.
(c)Apply the appropriate credits or uplifts.
(d)Impose a sentence on the lead charge of aggravated robbery reflecting totality but to be served concurrently with the existing sentence.
[43]Adopting that methodology I approach the sentencing as follows:
(a)The starting point for the aggravated robbery charge remains at 54 months (four and a half years).
(b)The stand-alone starting point for the charges of injuring with intent to injure, burglary and unlawful taking of a motor vehicle was 45 months.32
(c)The sum total of 99 months (8 years and two months) must be adjusted for totality. As explained above at paragraph [41], in my assessment, the global starting point encompassing all the offending ought to be six years.
32 R v Taylor-Harrison, above n 2, at [17].
(d)Apply appropriate credits totalling 30 per cent.33
(e)End sentence arrived at is four years and two months.
[44] In respect to the end sentence calculated this way, Mr McKenna submits that whilst the Court should impose a sentence on the lead charge of aggravated robbery reflecting totality, it should be served concurrently with the existing sentence rather than cumulatively. I do not accept that submission for the reasons given below.
[45] Section 84(1) of the Sentencing Act 2002 provides that cumulative sentences are generally appropriate if the offences for which the offender is being sentenced are different in kind, whether or not they are a connected series of offences.
[46] That an offence is committed while the accused is on bail is an important consideration in making the sentence cumulative rather than concurrent. The rationale for the assumption that offences of similar kind warrant concurrent penalties diminishes when the further offences are carried out on bail. This is because the arrest of the offender can be seen as a “natural break in events, and the offending that follows a deliberate act of wrongdoing made with the knowledge that a penalty was already likely for the earlier offending”34 showing a “contempt for the Court process.”35
[47] Mr Taylor-Harrison committed the injuring with intent to injure offending while on EM bail for the aggravated robbery offending. This, along with the offences being crucially different in type (albeit within a short time of each other) points to it being appropriate to impose a cumulative sentence in accordance with the general guidelines in s 84(1).
33 It is difficult to understand why the credits (15 per cent) imposed at the first sentencing (of 27 July 2023) were different to those imposed at the second sentencing (30 per cent). I agree with Mr McKenna’s submission that the wording used by Judge Cocurullo at paragraph [18] of the first sentencing implied that he intended to give a 30 per cent credit, despite grammatical lack of clarity (misplacement of punctuation) resulting in only 15 per cent being applied. Consequently, I have taken the 30 per cent as justified at the second sentencing on the basis of youth, background factors and guilty plea discount.
34 Makiri v Police (HC, Auckland CRI-2007-404-48, 16 July 2007) at [12]. The offender faced three counts of receiving, separated by some two months, with the latter two being committed whilst he was on bail for the first.
35 At [14], citing R v S (CA 232,283 and 340/92, 13 November 1992) at 9.
Result
[48] I have concluded that the approach followed in the District Court sentencing has led to error with the result that the overall sentence is manifestly excessive.
[49]Accordingly, I allow the appeal.
[50] I quash the cumulative sentence of 22 months and replace it with a cumulative end sentence of 12 months, making the total sentence overall one of four years and two months’ imprisonment rather than the current total sentence of five years.
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Walker J
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