BRIAN PAUL TAYLOR v R [2018] NZCA 444

BRIAN PAUL TAYLOR v R [2018] NZCA 444 [19 October 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA403/2018[2018] NZCA 444BETWEEN BRIAN PAUL TAYLORAppellantAND THE QUEENRespondentHearing: 4 October 2018Court: Miller, Woolford and Collins JJCounsel: JHM Eaton QC for AppellantB Hawes and H F McKenzie for RespondentJudgment: 19 October 2018 at 10.00 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is allowed. The sentence is quashed.C A sentence of four years and one month's imprisonment, to be servedcumulatively on the existing sentence, is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Taylor appeals a sentence of five years and six months imprisonmentimposed by Judge Edwards in the District Court at Palmerston North on 7 November2017, in relation to eight charges of supplying methamphetamine and one charge ofconspiring to supply cannabis.1 The sentence was imposed cumulatively with asentence of 16 years imprisonment that Mr Taylor was already serving.[2] Mr Taylor requires an extension of time as his notice of appeal was filedseven months out of time. The Crown properly accepts it has not been prejudiced bythe delay and does not oppose an extension being granted. We therefore grantMr Taylor's application for an extension of time to appeal.Background[3] In November 2004, Mr Taylor was sentenced on appeal to a total of 11 yearsimprisonment in relation to a number of charges, the most serious of which were twocharges of wounding with intent to cause grievous bodily harm and one charge ofaggravated robbery.2 The effect of the sentence imposed by Judge Edwards is thatMr Taylor will serve, in total, 21 years and six months in prison for all of his offending,including offending that pre-dates the November 2004 judgment.[4] At the time of the offending to which this appeal relates, Mr Taylor was aprisoner at Manawatu Prison. His security classification meant that the Departmentof Corrections did not consider him eligible for reintegrative activities, such as therelease to work programme or temporary releases. As a consequence, Mr Taylor'sapplications for parole had been rejected by the Parole Board.[5] In November 2016, police commenced an investigation into methamphetaminedealing in the Manawatu area, focusing upon communications traced to Mr Taylor inManawatu Prison. This investigation found Mr Taylor was running amethamphetamine supply operation. Others involved in the operation includedMr Taylor's mother, whose role was described as "an active investor". During theperiod the operation was monitored, police concluded Mr Taylor supplied112.05 grams of methamphetamine.1 R v Taylor [2017] NZDC 25439 [Sentencing judgment].2 Taylor v R CA178/04, 22 November 2004 at [36]. In that case, this Court reached an effectiveend sentence of 11 years' imprisonment for Mr Taylor's offending, but that was imposedcumulatively on sentences Mr Taylor was already serving for earlier offending. The combinedeffective sentence was 16 years' imprisonment.[6] Mr Taylor and his co-defendants sought a sentence indication, which was givenby Judge Edwards on 8 September 2017. In her sentence indication, the Judge adoptedthe methodology that she ultimately followed when she sentenced Mr Taylor and hisco-defendants. The sentence indication was one of five and a half years imprisonment,cumulative on Mr Taylor's existing sentence.[7] Mr Taylor's right of appeal is not affected by the fact the sentence imposedreplicated the sentence indication, which he accepted.3[8] Mr Taylor accepted the sentence indication and pleaded guilty.No pre-sentence report was called for. This was unfortunate as a pre-sentence reportmay have been able to convey to the Judge the difficulties Mr Taylor had in trying tosatisfy the requirements for parole in circumstances when he was deemed ineligible toparticipate in re-integrative activities.District Court decision[9] The Judge adopted an effective starting point of six years and two monthsimprisonment for the methamphetamine offending.4 She then added six monthsimprisonment to reflect the conspiracy to supply cannabis charge.5[10] The Judge imposed a further uplift of 20 months (25 per cent) to reflect the factthat Mr Taylor's offending occurred while he was in prison.6[11] The Judge also provided Mr Taylor with a discount of two years and one month(25 per cent) on account of his early guilty plea, and a further discount of nine months(12 per cent) to reflect the totality of the sentence when combined with his existingsentence.73 Criminal Procedure Act 2011, s 245.4 Sentencing judgment, above n 1, at [17].5 At [17].6 At [18].7 At [19] and [21].Appeal[12] In this Court, Mr Eaton QC accepted the starting point adopted byJudge Edwards was within the range that was available. We agree. This case fell inthe middle of band two of R v Fatu and justified a starting point of about six yearsimprisonment.8[13] Mr Eaton took issue with the uplift of 25 per cent to reflect the fact Mr Taylor'soffending occurred when he was in prison. In our assessment, however, that upliftwas within the range that was reasonably available and reflected the need to try todissuade prisoners from engaging in serious criminal offending whilst in prison.This Court has said that "the cases establish a consistent pattern of significant upliftsfor drug offending while in prison."9[14] The focus of Mr Eaton's submissions was on the totality principle, and inparticular the need to ensure that the cumulative effect of the sentence imposed onMr Taylor did not produce a crushing sentence that deprived him of all hope.10Analysis[15] We agree with all aspects of Judge Edwards' sentence other than her approachto totality. In this case, the question of totality needed to be assessed by evaluating thenecessity for an effective sentence of 21 and a half years imprisonment on this man.We say "effective" because, until Mr Taylor can receive the benefit of reintegrativeprogrammes, he is unlikely to be granted parole.[16] We consider it significant that in the District Court both the Crown and defencesubmitted that a discount of up to 35 per cent would be available to reflect the totalityprinciple. This approach was in line with comparable cases where the actual offendingtook place outside the prison environment.11 Unfortunately, Judge Edwards appears8 R v Fatu [2006] 2 NZLR 72 (CA) at [34(b)].9 Mau'u v R [2015] NZCA 80 at [27(c)].10 R v Bradley [1979] 2 NZLR 262 (CA) at 264; and R v Johansen (1997) 15 CRNZ 111 (CA)at 120–121.11 R v Milham HC Auckland CRI-2008-044-7390, 19 November 2010; and Faaleaga v R [2011]NZCA 495. Compare Tryselaar v R [2012] NZCA 353; R v Connelly [2010] NZCA 52; Ratu vR [2016] NZCA 97; and Karetu v R [2013] NZCA 408.to have been heavily influenced by the fact Mr Taylor's offending occurred when hewas in prison, saying that the principle of totality must not undermine the requirementfor a stern response to offending in the prison environment.12 The Judge thereforeprovided a very modest discount when considering totality.[17] We agree with Mr Eaton that Mr Taylor has been given a crushing sentencethat sends to him the message he has no hope of being reintegrated into society.That consequence is not consistent with the principle of rehabilitation, a cornerstoneof the Sentencing Act 2002.13[18] We are therefore going to allow Mr Taylor's appeal against sentence andsubstitute the discount of nine months for totality adopted in the District Court withone of two years and two months. This means Mr Taylor's end sentence will bereduced to four years and one month's imprisonment. That sentence is cumulative onhis existing sentence.Result[19] The application for an extension of time to appeal is granted.[20] The appeal is allowed. The sentence is quashed.[21] A sentence of four years and one month's imprisonment, to be servedcumulatively on the existing sentence, is substituted.Solicitors:Crown Solicitor, Christchurch for Respondent12 Sentencing judgment, above n 1, at [21].13 Sentencing Act 2002, s 7(1)(h).