TAYLOR v R [2021] NZCA 606

TAYLOR v R [2021] NZCA 606 [17 November 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA681/2019[2021] NZCA 606BETWEEN JAMES MATTHEW TAYLORAppellantAND THE QUEENRespondentHearing: 1 September 2021Court: Gilbert, Duffy and Peters JJCounsel: A J Davis for AppellantJ E Mildenhall for RespondentJudgment: 17 November 2021 at 9.30 amJUDGMENT OF THE COURTA The appeal against conviction on the aggravated burglary charge isallowed. The conviction on that charge is set aside and a conviction forburglary under s 231(1)(a) of the Crimes Act 1961 is substituted.B The appeal against sentence is allowed. The sentences imposed inthe District Court are set aside and the following sentences substituted,reducing the effective end sentence of 10 years' imprisonment to six yearsand 10 months' imprisonment.C The sentence on the charge of injuring with intent to cause grievous bodilyharm is reduced from five years and seven months' imprisonment to fouryears and nine months' imprisonment.D Mr Taylor is sentenced to two years and one month's imprisonment onthe charge of burglary of the property at Wairakei Road, Christchurch.This is to be cumulative on the sentence imposed on the charge of injuringwith intent to cause grievous bodily harm.E The sentence on the charge of possession of instruments for burglary isreduced from nine months' imprisonment to six months' imprisonment.This is to run concurrently with the sentence imposed for the WairakeiRoad burglary.F The sentence on the charge of burglary of Odyssey House in Greers Road,Christchurch is reduced from 12 months' imprisonment to six months'imprisonment. This is to run concurrently with the sentence imposed forthe Wairakei Road burglary.G The sentence on the charge of breach of release conditions is reduced fromthree months' imprisonment to two months' imprisonment. This is to runconcurrently with the sentence imposed for the Wairakei Road burglary.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] Following trial by jury in the District Court at Christchurch, James MatthewTaylor was found guilty of aggravated burglary of a property in Wairakei Road,Christchurch.1 Around the same time, Mr Taylor also entered guilty pleas in relationto three unrelated sets of offending and was convicted of injuring with intent to causegrievous bodily harm (the GBH offending); burglary of Odyssey House inGreers Road, Christchurch; and breach of release conditions. On 16 December 2019,he was sentenced on all four sets of offending by Judge O'Driscoll.2 The Judgeimposed cumulative sentences for the GBH offending and aggravated burglaryoffending, resulting in an end sentence of 10 years' imprisonment. The end sentencewas constructed as follows:3(a) GBH offending (cumulative) — five years and seven months'imprisonment.1 Mr Taylor pleaded guilty to a related charge of possessing instruments for burglary at thecommencement of the trial. A further related charge of assault with a weapon was dismissed.2 R v Taylor [2019] NZDC 25818 [Sentencing judgment].3 At [48].(b) Aggravated burglary at Wairakei Road (cumulative) — four years andfive months' imprisonment.(c) Possession of instruments for burglary (concurrent) — nine months'imprisonment.(d) Burglary at Odyssey House (concurrent) — 12 months' imprisonment.(e) Breach of release conditions (concurrent) — three months'imprisonment.[2] Mr Taylor now appeals against his conviction for aggravated burglary. He alsoappeals against the total end sentence of 10 years' imprisonment.4Appeal against convictionFacts of the Wairakei Road offending[3] At the time of the relevant offending, Mr Taylor was a 27-year-old male of nofixed abode. On 26 August 2018, he burgled a private home in Wairakei Road,Christchurch during daylight hours. While Mr Taylor was outside and in the processof leaving with the stolen property in his backpack, he was confronted by the occupant(the complainant). The complainant grabbed Mr Taylor and removed him from hisbicycle. There was a struggle and Mr Taylor was thrown against a glass ranch slider,which shattered, leaving the two men surrounded by broken glass. The strugglecontinued and, during it, Mr Taylor allegedly grasped a shard of broken glass in hishand and threatened to injure the complainant with it. It is this action which the Crownrelied on to charge Mr Taylor with aggravated burglary, on the ground the glass shardconstituted a weapon for the purpose of s 232 of the Crimes Act 1961. During thestruggle, the complainant sustained a severe laceration to his knee and requiredhospitalisation. This laceration was not the result of any wounding by Mr Taylor.4 Initially Mr Taylor also appealed against his conviction on the charge of injuring with intent tocause grievous bodily harm, despite having entered a guilty plea to this charge. He complainedthat the circumstances in which the plea was entered had given rise to a miscarriage of justice.However, his appeal against conviction on this charge was formally abandoned at the hearing.Grounds of appeal[4] At the hearing Mr Taylor's counsel, Mr Davis, confirmed that of the fiveoriginal grounds of appeal only the first is maintained. This ground is based on allegederrors by the trial Judge in allowing a prejudicial photograph of the complainant'sincidental injury to be admitted as evidence and failing to properly direct the jury inrelation to the photograph. However, Mr Davis made it clear that the real focus ofthe conviction appeal is on a new additional ground: namely, trial counsel conduct.He submits defence counsel ran a contradictory scattergun defence (based on three"prongs") and failed to put the defence case to the complainant, who was notcross-examined.[5] However, we consider defence counsel was faced with a confused and muddledprosecution case that would have made it difficult for her to focus on the real issues.Further, one of the three prongs to the defence case was that, by the time Mr Taylorand the complainant struggled with each other, the burglary was completed andtherefore the offending could not be the subject of an aggravated burglary charge.For the reasons provided below, we consider this was a correct analysis of the evidenceadduced at trial. Accordingly, we are satisfied the conviction appeal on this chargemust be allowed.The Crown and defence case[6] Mr Taylor was initially charged with aggravated burglary (by arming himselfwith a glass shard), assault with a weapon (the glass shard) and possession ofinstruments for burglary. The particulars of the aggravated burglary charge were that,"having committed burglary [Mr Taylor] used a piece of glass as a weapon".[7] At the commencement of the trial Mr Taylor pleaded guilty to the charge ofpossession of instruments for burglary. At the same time the Crown charge notice forthe aggravated burglary was amended "to reflect the correct wording of s 232(1)(a)"of the Crimes Act.55 R v Taylor DC Christchurch CRI-2019-009-3350, 15 July 2019 (Minute of Judge O'Driscoll) at[2]. We note that, while Mr Taylor was charged under s 232(1)(a), the original wording of "havingcommitted burglary" is found in s 232(1)(b) of the Crimes Act 1961.[8] The particulars of the amended charge alleged that "while entering a building without authority and while committing burglary in that building, [Mr Taylor] useda piece of glass as a weapon."[9] The Crown opened to the jury on the basis the alleged offending took placewhen Mr Taylor, who was on Wairakei Road with two screwdrivers, a small handshovel and a pair of black coloured gloves, approached the property down a longdriveway, entered through a gate and jemmied open a window to gain access.Once inside, he grabbed a number of items and loaded them into his backpack.These included an i-Phone, several pairs of sunglasses, a digital camera and a watch.[10] In its opening, the Crown referred the jury to the photographs it had of scratchmarks to the window Mr Taylor was said to have jemmied open and the evidence ofvarious items of property taken from inside the house (which were found in hisbackpack outside of the house). The Crown's case was that the jury could be sureMr Taylor had entered the complainant's address without authority and withthe intention of committing a crime inside the building, namely theft, which wasevidenced by the fact Mr Taylor was found with stolen items.[11] The Crown's case for the offending being an aggravated burglary was that,"during the course of the burglary", Mr Taylor picked up the glass shard and threatenedto stab the complainant. The use of the glass shard was said to have happened whileMr Taylor was outside the house and attempting to flee the property.[12] Where the Crown confused matters was in advancing a case that Mr Taylorarmed himself with a glass shard "during the course of" the burglary. This was legallyincorrect, as we explain later.[13] The Crown presented the assault with a weapon charge to the jury on the basisMr Taylor assaulted the complainant when attempting to flee from the property and,during the course of the assault, he had with him the glass shard, which he intended touse as a weapon. The Crown relied on Mr Taylor's alleged threat to the complainant— "I'm going to stab you" — to prove this intent.[14] The defence opened to the jury on the basis Mr Taylor did not deny that he wasat the property or that he attempted to flee the property when he realisedthe complainant had arrived home. The defence case was there was no aggravatedburglary because by the time Mr Taylor was alleged to have picked up the glass shardthe burglary had ended. The Crown had not proven the assault with a weapon chargebeyond reasonable doubt either, as there was ample evidence to show Mr Taylorpicked up the glass shard in self-defence after being assaulted by the complainant.Why the appeal must be allowed[15] Mr Davis was critical in his submissions on appeal of how defence counsel ranthe trial, particularly the failure to cross-examine the complainant. However, atthe time the trial was conducted, all defence counsel knew of the Crown's case waswhat Crown counsel had presented at opening.[16] The particulars of the amended charge of aggravated burglary refer to the glassshard being used as a weapon while committing burglary, which is what s 232(1)(a)of the Crimes Act provides. However, burglary is not a continuing offence.Under s 232(1)(a), the offence of burglary is complete once there is an unauthorisedentry with intent to commit an imprisonable offence.6 Based on the Crown opening,once Mr Taylor jemmied open the window and entered the house, the burglary wascomplete.[17] Because a building includes an enclosed yard,7 the burglary may possibly havebeen complete even earlier, once Mr Taylor passed through the gate on to the property.This was given his own admission he was carrying instruments to commit a burglary.However, the evidence did not specifically address whether the yard surroundingthe house could meet the definition of an enclosed yard and the Crown never advancedits case on that basis. On either approach, the burglary was complete by the timeMr Taylor allegedly picked up the glass shard.6 Kahuroa v R [2021] NZCA 39 at [19]; and Larkins v Police [1987] 2 NZLR 282 (HC) at 286.7 Crimes Act, s 231(2).[18] Faced with the Crown's case it is understandable defence counsel arguedthe burglary was complete by the time Mr Taylor was said to have grabbed the glassshard. Any use he was said to have made of the glass shard would then have only beenrelevant to the related charge of assault with a weapon. Here the defence was basedon: (a) a denial Mr Taylor had the glass shard at all; or (b) if he did, he was acting inself-defence.[19] At the close of the Crown case the assault with a weapon charge was dismissedpursuant to s 147 of the Criminal Procedure Act 2011. But until then this was a livecharge that the defence needed to address. The reasons for its dismissal are notavailable to us.[20] The defence elected to call no evidence. The Crown closed its case on the basisthe burglary was continuing at the time Mr Taylor and the complainant struggled witheach other. This would have placed the defence in an invidious position.Defence counsel closed on the basis that Mr Taylor had no glass shard at all(prong one) or, if he did, it was only after the burglary was complete (prong two) or,if the burglary was ongoing, he only used the glass shard in self-defence (prong three).[21] The legal error created by the way the Crown advanced its case wascompounded by the Judge in his summing up, where he directed the jury that burglarywas a continuing offence and it was a matter for them to determine when it had ended.The Judge correctly directed the jury that "[t]o find Mr Taylor guilty of aggravatedburglary [they] must be sure that [he] armed himself with the shard while committingthe burglary". But the Judge later gave wrong directions to the jury when he said:My direction to you in law is this, that the offence of burglary can bea continuing offence. My direction to you is that the offence of burglary doesnot cease simply at the time a burglar may have entered the property.[22] The jury's guilty verdict on the charge of aggravated burglary shows that theymust have relied on this incorrect direction. The legal error was fundamental; itprecluded the jury from reaching a proper verdict based on law. Put shortly, Mr Taylordid not receive a fair trial on this charge and justice has miscarried.[23] It follows that the appeal against conviction on the aggravated burglary chargemust be allowed and the conviction on that charge must be set aside. However, weconsider the appropriate course is to direct pursuant to s 234(2) of the CriminalProcedure Act that a judgment of conviction for burglary contrary to s 231(1)(a) ofthe Crimes Act be entered. Mr Taylor obviously could have been found guilty at trialof burglary and the jury was plainly satisfied of the facts necessary to prove him guiltyof burglary.Appeal against sentence[24] Mr Taylor's success on the conviction appeal necessarily impacts on his appealagainst sentence. The appropriate sentence for the reduced charge of burglary willneed to be considered before addressing the sentences imposed on the other chargesand the required totality adjustment.[25] We begin by describing the four sets of offending that were before the Judgefor sentencing.GBH offending[26] Mr Taylor was initially charged with wounding with intent to cause grievousbodily harm.8 He pleaded guilty to an amended charge of injuring with intent to causegrievous bodily harm that was supported by an amended summary of facts, which areas set out below.9[27] On 9 July 2018 Mr Taylor was in a vehicle on Rattray Street, Riccarton withan associate. He had arranged to meet the complainant in order to carry outa pre-arranged transaction. The complainant left his home address and approachedMr Taylor who was standing beside the vehicle on the road. As the complainantapproached, Mr Taylor revealed he was holding a large steel pole in both hands.Mr Taylor shouted abuse at the complainant and advanced towards him.The complainant turned to leave and was struck on his back by the steel pole; the forceof this blow knocked him to the ground. As the complainant lay on the ground8 Crimes Act, s 188(1).9 Section 189(1).Mr Taylor continued to strike him with the steel pole about his head and body.The complainant pleaded with Mr Taylor to stop hitting him, and on at least twooccasions attempted to get to his feet and leave. Mr Taylor continued to strike himuntil his associate shouted to Mr Taylor to get back into the vehicle. They immediatelyleft the scene leaving the complainant on the roadside. As a result of the attackthe complainant suffered several broken bones, including both wrists and multiple ribfractures. He sustained lacerations to his head, arms and shoulders and multiple softtissue injuries to his entire body.[28] The complainant was aged 63 at the time of sentencing. He describedthe injuries as being incredibly painful to the extent they hindered his normal everydayactivities. The injuries to his ribs affected his breathing. The complainant describedhow both his wrists were broken as he had held his hands up to defend his face fromblows. The complainant suffered financial costs as a result of the injuries and hismental health and emotional wellbeing were also affected. He required counsellingand has rods and pins in place in both arms which will be there for the rest of his life.Other members of the complainant's family also supplied complainant impactstatements indicating the effects and consequences they had seen on the complainant.They described this as a difficult and heart breaking time for the family.Wairakei Road burglary and possession of instruments for burglary[29] We have already described the facts of this offending, which involveda daylight forced-entry burglary, committed when no-one was home and whenMr Taylor could have expected this to be the case. The fact Mr Taylor enteredthe property while in the possession of instruments to commit a burglary reveals anelement of premeditation. He stole small household and personal items of the typethat could be readily converted into cash. As we have found, what eventuated betweenhim and Mr Taylor during their struggle occurred after the burglary was complete.Odyssey House burglary[30] Mr Taylor was also sentenced in respect of an earlier burglary ofOdyssey House in Greers Road, Christchurch committed on 3 August 2018, to whichhe pleaded guilty. Odyssey House is a residential drug rehabilitation facility. Shortlyprior to this offending, Mr Taylor was subject to release conditions requiring him tocomplete a residential programme at Odyssey House. He failed to completethis programme and left without consent. Thus, Mr Taylor would have been aware ofthe set-up and layout at Odyssey House when he burgled it. At that time Mr Taylorhad no permission to be there; he entered through a sliding door and took food itemsand a laptop.Breach of release conditions[31] The last set of offending Mr Taylor was sentenced on was charge of breach ofrelease conditions. This charge related to the fact Mr Taylor left Odyssey Housewithout the consent of the programme facilitators, prior to completing the programme.On 23 March 2018, Mr Taylor was sentenced by Judge Neave for this offending toa two-year sentence of intensive supervision, which was live at the time of the GBHoffending, Wairakei Road burglary and Odyssey House burglary.10 In light ofthe further offending, Judge Neave cancelled the intensive supervision order andreferred the matter to Judge O'Driscoll for resentencing along with the other sets ofcharges.Revised sentencePre-sentence report[32] Mr Taylor is now 29 years old and was 27 at the time of sentencing. His firstcourt appearance was in the Youth Court in 2007–2008. He has an extensive criminalhistory, which involves 29 convictions for burglary.[33] Two pre-sentence reports were obtained prior to sentencing. These identifieddrug use, an unhealthy lifestyle balance and a propensity for violence as the keyoffence-related factors contributing to Mr Taylor's offending. Mr Taylor was assessedas posing a high risk of reoffending based on his offending history and ongoingdependence on illicit drugs. His offending pattern was described as consistent.However, the harm associated with Mr Taylor's offending was said to be escalating10 Department of Corrections v Taylor [2018] NZDC 5872.and was considered high. We agree with those observations. They are borne out bythe pattern of the present offending.GBH offending[34] Like the Judge, we propose to treat the GBH offending as the lead charge, giventhis was the most serious offending.[35] The Judge described the GBH offending as "completely gratuitous violence"which left the complainant battered and bleeding on the roadside.11 We agree.The attack was violent and unprovoked. It left the complainant seriously injured.[36] The Judge referred to the guideline judgment for causing grievous bodily harmin R v Taueki.12 He correctly recognised that this judgment referred to sentencingbands based on the offence of causing grievous bodily harm (carrying a maximumavailable sentence of 14 years' imprisonment) under s 188(1) of the Crimes Act,whereas, here the charge involved injuring with intent to cause grievous bodily harmunder s 189(1) (a 10-year maximum sentence).13 Accordingly, some adjustment wasrequired. The Judge found present four of the aggravating factors identified in Taueki,namely: premeditation; the use of a weapon; attack to the head; and the extent ofthe injuries. The fact Mr Taylor was on a sentence of intensive supervision forbreaching prison release conditions at the time of the offending was an additionalaggravating factor.14[37] The Judge adopted a starting point of seven years' imprisonment (84 months).A reduction of 17 months' imprisonment (20 per cent) was made to take account ofMr Taylor's guilty plea which saved the complainant having to come to Court to giveevidence. This left a sentence of five years and seven months' imprisonment(67 months).11 Sentencing judgment, above n 2, at [9].12 At [11], referring to R v Taueki [2005] 3 NZLR 372 (CA).13 At [11].14 At [38]. See also R v Taueki, above n 12, at [31].[38] We agree with the sentencing process the Judge followed. This offending felltowards the upper end of the range of available starting points for this offence. We seeno error here and agree with the cumulative sentence the Judge reached onthe GBH offending.Wairakei Road burglary and possession of instruments for burglary[39] There is no guideline judgment for burglary. However, burglary ofa dwelling-house at the minor end of the scale can attract starting points ranging fromone to two and a half years' imprisonment.15 We consider the element of premeditation(indicated by possession of instruments for burglary), the time of the burglary(daytime), and the small number of relatively low-value items taken placethis offending in the lower/middle of the range. Therefore, we consider a starting pointof 17 months' imprisonment is appropriate.[40] As noted, Mr Taylor has 29 previous convictions for burglary. He has relatedconvictions including three for being unlawfully in an enclosed yard andfour convictions for possessing instruments for burglary. Mr Taylor also has otherdishonesty convictions for theft and receiving.[41] Mr Taylor has the appearance of a recidivist burglar, although not the type whomay be classified as a professional burglar. Mr Taylor's offending appears to bemotivated by his drug habit and lifestyle choices. It is notable that, at the time ofthe offending, Mr Taylor was of no fixed abode. His offending appears to have beenmotivated by his need for funds to acquire food and drugs. Some uplift is required torecognise his prior burglary convictions and related offending. We considera seven-month uplift appropriate. However, we make no provision for an uplift toaccount for the possession of instruments for burglary offending as his possession ofthose instruments has been reflected in the element of premeditation, which influencedthe starting point we have adopted.15 See Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]; Tutakangahau v R [2014]NZCA 279, [2014] 3 NZLR 482 at [42]–[44]; and Columbus v R [2008] NZCA 192 at [16].[42] This leaves a cumulative sentence of two years' imprisonment for theWairakei Road burglary (subject to the uplift below at [43]). We consider thatthe concurrent sentence of nine months' imprisonment imposed for the possession ofinstruments charge should be reduced to six months' imprisonment.Odyssey House burglary[43] The earlier Odyssey House burglary happened in the same month asthe Wairakei Road burglary. We consider concurrent sentences for these burglariesare appropriate. Accordingly, we account for this offending with a six-month uplift tothe sentence on the Wairakei Road burglary, taking that later sentence to two years andsix months' imprisonment. We consider that the concurrent sentence of one year'simprisonment for the Odyssey House burglary imposed by the Judge should bereduced to six months' imprisonment. This recognises the low-level offendinginvolved and the fact Mr Taylor pleaded guilty to this offending.Breach of release conditions[44] Regarding the breach of release conditions, the Judge imposed a three-monthsentence of imprisonment to run concurrently with the sentence for the Wairakei Roadburglary.16 However, it appears the Judge intended to impose a two-month sentencefor this offending.17 We consider this to be the appropriate sentence.Totality adjustment[45] The sentence for the GBH offending (67 months' imprisonment) is cumulativeon the sentence for the Wairakei Road burglary (30 months' imprisonment).The sentences imposed on the remaining charges — the possession of instruments forburglary, Odyssey House burglary and breach of release conditions — runconcurrently with the sentence for the Wairakei Road burglary. This brings the totalend sentence to eight years and one month's imprisonment (97 months). We considerit is appropriate to adjust the two cumulative sentences by 15 per cent to reflect totality,16 Sentencing judgment, above n 2, at [48].17 At [45].which brings the total end sentence to approximately six years and 10 months'imprisonment (82 months).[46] The revised end sentence of six years and 10 months' imprisonment isconstructed as follows:(a) GBH offending (cumulative) — four years and nine months'imprisonment.(b) Wairakei Road burglary (cumulative) — two years and one month'simprisonment.(c) Possession of instruments for burglary (concurrent) — six months'imprisonment.(d) Odyssey House burglary (concurrent) — six months' imprisonment.(e) Breach of release conditions (concurrent) — two months'imprisonment.[47] The sentences we have arrived at are the result of the successful convictionappeal, which required a corresponding reduction in sentence. It follows that we mustalso allow the sentence appeal.Result[48] The appeal against conviction on the aggravated burglary charge is allowed.The conviction on that charge is set aside and a conviction for burglary unders 231(1)(a) of the Crimes Act 1961 is substituted.[49] The appeal against sentence is allowed. The sentences imposed inthe District Court are set aside and the following sentences substituted, reducingthe effective end sentence of 10 years' imprisonment to six years and 10 months'imprisonment.[50] The sentence on the charge of injuring with intent to cause grievous bodilyharm is reduced from five years and seven months' imprisonment to four years andnine months' imprisonment.[51] Mr Taylor is sentenced to two years and one month's imprisonment onthe charge of burglary of the property at Wairakei Road, Christchurch. This is tocumulative on the sentence imposed on the charge of injuring with intent to causegrievous bodily harm.[52] The sentence on the charge of possession of instruments for burglary is reducedfrom nine months' imprisonment to six months' imprisonment. This is to runconcurrently with the sentence imposed for the Wairakei Road burglary.[53] The sentence on the charge of burglary of Odyssey House in Greers Road,Christchurch is reduced from 12 months' imprisonment to six months' imprisonment.This is to run concurrently with the sentence imposed for the Wairakei Road burglary.[54] The sentence on the charge of breach of release conditions is reduced fromthree months' imprisonment to two months' imprisonment. This is to run concurrentlywith the sentence imposed for the Wairakei Road burglary.Solicitors:Clark Boyce, Christchurch for AppellantCrown Law Office, Wellington for Respondent