The Queen v Michael Pan Taylor

[2003] NZCA 241

IN THE COURT OF APPEAL OF NEW ZEALAND

CA176/03

THE QUEEN

v

MICHAEL PAN TAYLOR

Hearing:20 October 2003

Coram:Glazebrook J
Baragwanath J
Goddard J

Appearances:  D N Bunce for Appellant

M F Laracy for Crown

Judgment:24 October 2003 

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

INTRODUCTION

[1]       Mr Taylor pleaded guilty to three charges of possession of a firearm and three counts of possession of explosives, being ammunition for these firearms.  On 5 May 2003 he was sentenced to an effective term of four years imprisonment.  He appeals against that sentence.

Background facts

[2]       On 21 February 2002 the Police searched the premises at 190 Lincoln Road, Christchurch, which is the headquarters of the Epitaph Riders motorcycle gang, in order to locate two men who were believed to have been involved in an aggravated robbery.  The Police search was unsuccessful in that regard but, in the course of the search, they found three firearms.

[3]       Mr Taylor was a patched member of the gang.  A loaded revolver (.32 calibre pistol) was found in Mr Taylor’s car, in the console between the front seats.  Five further rounds of ammunition were found with it.  A second loaded revolver of the same make and calibre was found concealed in the seat of a motorcycle in a workshop on the premises.  It was loaded with five rounds of ammunition.  In the same spot was an improvised “pen pistol”, a pistol in the shape of a ballpoint pen.  It had the mechanism and firing pin to enable it to fire a .22 calibre bullet.  It was wrapped up in gladwrap with one round of .22 ammunition.

Sentencing remarks of the judge

[4]       The judge began by setting out the circumstances of the offending.  The judge then indicated that he had earlier sentenced Mr Taylor to a term of 18 months imprisonment for possession of a pistol in public.  He reminded Mr Taylor that he had told him, at the time of the earlier sentencing, that the courts would adopt a stiff view in relation to the possession of pistols.  He then referred to the probation officer’s report in the following terms:

The probation officers report has been considered by me.  The probation officer observes that you had been a member of a gang but had distanced yourself from the activities of that gang.  It is interesting to note that when you came before me in 1998, just such a similar observation was made in the probation officer’s report and on your behalf.  You told the probation officer recently that you had a pistol to protect yourself from another gang, which was just the reason which you gave on the last occasion in 1998.  You said to the probation officer, on this occasion, that you are not an active member of the gang, but it seems to me that the possession of pistols at gang headquarters does not support the claim and in any event this is much the same as you told me last time.

[5]       The judge then referred to Mr Bunce’s submission that there was a little distance between Mr Taylor and two of the pistols and that Mr Taylor had broken his links with the Epitaph Riders and that there had been a change of lifestyle.  The judge noted:

Certainly you have moved out of Christchurch and there may be some currency for that statement.

[6]       The judge recorded the Crown’s submission that the current offending was serious in the light of the previous conviction and the fact that the offending was in a gang-related setting.

[7]       He then referred to the aggravating features of the offending relating to the number of weapons, the fact that two were loaded and ready for use and the previous conviction.  The one mitigating feature identified was the guilty plea.  In this regard the judge said:

The mitigating feature is your plea of guilty.  It was not quite a last minute plea of guilty, but it was close to a last minute plea of guilty and there seems to be a possibility of a change of heart.

[8]       The judge then said that the possession of firearms and ammunition in a gang context demands a very firm sentencing policy and that repetitive conduct will draw a condign response.  He expressed the view, that if there had been a trial and a finding of guilty, the appropriate term of imprisonment would have been five years.  Taking into account the guilty plea he considered a four year term appropriate.

[9]       To arrive at that result the judge imposed a number of cumulative and concurrent sentences.  In relation to the firearm in the car he imposed 18 months imprisonment.  For the firearms concealed in the motorcycle, cumulative sentences of 12 months and 18 months were imposed.  In relation to the ammunition charges the judge imposed a concurrent sentence of 12 months.

Submissions of Mr Taylor

[10]     Mr Bunce’s first submission was that the starting point of five years taken by the sentencing judge was out of line with the recent decision of this Court in R v McDonald & Ors CA108/00, CA109/00, CA110/00, CA111/00, CA114/00, CA115/00, 10 July 2000.  In that case sentences of three years imprisonment were upheld for offences which Mr Bunce submits were arguably worse than in this case and where the offenders were convicted after a jury trial. 

[11]     Mr Bunce submitted that, while there was direct evidence linking Mr Taylor to the firearm, and the ammunition for it found in his car, there was no such evidence linking him to the firearms and the ammunition found in the motorbike and his pleas of guilty to those charges were really based upon the fact that he was caught by the provisions of the Arms Act, deeming him to be in possession of those items as he was an occupant of the address.  He said that, once Mr Taylor had pleaded guilty to all counts in the indictment, the Crown elected not to proceed against any of the other defendants in the up-coming trial.  Mr Taylor was thus the only member of the Epitaph Riders who was convicted and sentenced for these offences. 

[12]     Mr Bunce also submitted that the sentencing method adopted by the judge of imposing a number of cumulative sentences of imprisonment, resulted in a sentence which was manifestly excessive.  He submitted that, in accordance with s84(2) of the Sentencing Act it would have been more appropriate to have imposed a sentence on the most serious offence which reflected the totality of the offending and then to have imposed concurrent terms on the remainder. 

[13]     Finally Mr Bunce pointed to the efforts of Mr Taylor to rehabilitate himself by severing his links with the gang and submitted that these efforts had not been recognised in the sentence imposed.

Submissions of the Crown

[14]     Ms Laracy, for the Crown, submitted that the Court’s focus should be on the end result, rather than on the mechanics of the judge’s approach.  In her submission an effective sentence of four years imprisonment was available for the totality of the offending and it must not be overlooked, that, although the three weapons were found as part of one incident, Mr Taylor faced six separate charges.  In addition, although only one of the pistols was found connected with Mr Taylor’s own personal property, he is responsible for possessing all three firearms and the ammunition.  In this regard, Ms Laracy referred not only to the fact of his guilty pleas, but also to the realities of a close-knit organised gang culture within a gang headquarters.

[15]     In Ms Laracy’s submission it was a distinctly aggravating feature that one of the weapons was found ready to hand in Mr Taylor’s car.  It suggests that he carried, or was prepared to carry, the revolver with him around the streets of Christchurch as a matter of course.  Finally, Ms Laracy submitted that Mr Taylor’s previous conviction is a marked aggravating factor.  The facts of that incident indicate that a distinctly more deterrent sentence was appropriate this time around.  The sentence was also appropriate as the offending took place in a gang context.

[16]     Ms Laracy submitted that the effective sentence is in keeping with the three year terms imposed in McDonald.  The difference of one year is justified having regard to the fact of Mr Taylor’s previous similar conviction, the particularly disturbing aspect that he had a loaded pistol at hand in his car and the judge’s concern to impose a deterrent sentence.  It was Ms Laracy’s submission that McDonald provides a helpful guide to sentencing, but is not a cap.

[17]     She accepted that it was appropriate for rehabilitative efforts to be taken into account and that the judge did not appear to have done so.  On the other hand, a generous discount for what was a late guilty plea had been given and this could be viewed as having taken into account to a proper extent the rehabilitative efforts of Mr Taylor.  In Ms Laracy’s submission these efforts cannot be exaggerated, given that Mr Taylor is a recidivist and the fact that there are marked similarities between the two sets of offences, the explanation given for the offending (based on gang rivalry) and the assertions of rehabilitation efforts.  In addition, Mr Taylor was clearly an adult at the time of the first offence.

Discussion

[18]     Given the number of firearms, the fact they were loaded and easily accessible, the previous conviction and the gang connections we consider the judge was clearly entitled to take the view that a starting point of five years was appropriate for the totality of offending.  We accept the Crown submission that a stern approach is required for such offending (and particularly recidivist offending in a gang context) and that it is important to have regard to the totality of the offending.  We also agree that the level of sentences imposed in McDonald cannot be seen as a cap. 

[19]     We reject Mr Bunce’s contention that the manner in which the sentence was made up led the judge into error.  If the total effective sentence is appropriate it does not matter how it was arrived at – see McDonald, para [24]. While in terms of s84(2) of the Sentencing Act 2002 there is a presumption in favour of concurrent sentences, given the connection between the offences, it was open to the judge to impose cumulative sentences in order properly to reflect the totality of offending.

[20]     It is common ground, however, that the judge took no account of Mr Taylor’s assertions that he had severed his links with the Epitaph Riders, despite recognising that his change of address from Christchurch to Blenheim could give some credence to these.  It is obvious that the judge (understandably) viewed Mr Taylor’s claims with some scepticism given that Mr Taylor had made the same assertion as to the severing of his gang links at the time of the earlier conviction.

[21]     The judge had before him a number of references, mostly from family and associates.  There was also, however, a reference from a company providing labour for vineyards which indicated that Mr Taylor had worked with the company in Blenheim for a period of three months.  He was described in that letter as an asset to the company. 

[22]     We also had the advantage of hearing from Mr Taylor’s parents.  They expressed the view that this time Mr Taylor has truly resolved to break his association with the gang.  They put this down to his current age (now 27 as against 22 at the time of the earlier offence) and, more importantly, to the influence of his girlfriend, to whom he has just become engaged.  In his parents’ view this has led to Mr Taylor understanding that he has to set new priorities and has enabled him to put into perspective his love of motorcycles which, in their view, was the only reason he had become involved with the gang.  Aside from that involvement they told us that they had never had any trouble with him and that he had always been a good son and respectful to them.  We were impressed with Mr and Mrs Taylor’s support for their son, their obvious sincerity and their optimism that their son would be able to put his past behind him.

[23]     On the basis of the material before the judge and what we heard from Mr Taylor’s parents we are prepared to accept that Mr Taylor is this time making a real effort to turn his life around and sever his connections with the gang.  The change of address in particular is, as the judge said, a major indication to this effect, as is the work reference.

[24]     In our view, just as the possession of firearms in a gang context is seen as justifying a stern approach to sentencing, credit should be given to rehabilitative efforts and, in particular, where these involve severing ties with a gang.  That this is appropriate was recognised by this Court in McDonald, para [35]. The seriousness of the offending must of course still be met with a penalty appropriate for general deterrence. In this case we consider an effective sentence of three years strikes that balance. Mr Taylor must recognise, however, that any return to the gang connections and consequent further offending of this nature will be dealt with severely.

Result

[25]     We consider that the effective sentence of four years should be replaced with an effective sentence of three years. 

[26]     As a result the sentence of 12 months on count 2, cumulative on the 18 months on count 1, is quashed and replaced with a sentence of 12 months, to be served concurrently with the sentence of 18 months on count 1.  For the avoidance of doubt, this means that the sentence of 18 months imprisonment on count 3 is to be cumulative on the sentence of 18 months imprisonment on count 1.

Solicitors:
Crown Law Office, Wellington