TAYLOR v R [2020] NZCA 584

TAYLOR v R [2020] NZCA 584 [23 November 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA414/2020[2020] NZCA 584BETWEEN LUKE JAMES TAYLORAppellantAND THE QUEENRespondentHearing: 11 November 2020Court: Courtney, Woolford and Mander JJCounsel: E P Priest and P D Wilks for AppellantR L Mann for RespondentJudgment: 23 November 2020 at 3 pmJUDGMENT OF THE COURTA Leave to file an affidavit in support of the application for an extension oftime to file an appeal is granted.B The application for an extension of time to file an appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] On 2 February 2015, Luke Taylor was sentenced to six and half years'imprisonment on four charges of importing methamphetamine, one of conspiring toimport methamphetamine and one of possessing that drug for supply.1 On 29 July2020, he gave notice that he wished to appeal that sentence on the basis that it wasmanifestly excessive. Mr Taylor alleged that the sentencing Judge failed to applyappropriate discounts for cultural and personal factors to be set out in a report thatwould be prepared for the appeal under s 27 Sentencing Act 2002, and in recognitionof his youth.Background[2] The charges of importation, conspiracy and possession of methamphetaminefor supply related to four importations of the drug through the mail between Februaryand April 2014. Mr Taylor admitted that the first importation was of 160 g ofmethamphetamine. This was consistent with the amount located when the fourthshipment was intercepted by Customs. The quantities imported as a result of thesecond and third shipments could not be ascertained and the sentencing Judgeproceeded on the basis that at least 320 g had been imported. It was, however,reasonable to assume that a greater amount of methamphetamine had been imported.Sentencing in the District Court[3] Mr Taylor received a sentence indication from Judge Thomas on 3 December2014. Applying the guideline judgment of this Court that applied at the time, R v Fatu,it was determined that the offending fell within band three and that a starting point ofnine years' imprisonment was appropriate.2 A full discount of 25 per cent wasextended for the guilty pleas, which resulted in an indicated end sentence of six yearsand nine months' imprisonment.[4] At sentencing, Judge Thomas addressed the issue of whether there was roomfor any additional discount. Mr Taylor's grandfather had addressed the Court aboutMr Taylor's background. The Judge described the information that had been providedin the following way:31 R v Taylor [2015] NZDC 1412.2 R v Fatu [2006] 2 NZLR 72 (CA) at [36].3 R v Taylor, above n 1, at [2].I have heard this morning from Mr Koroko, your grandfather, on your behalf.He detailed the difficult circumstances you had as a child and through yourteens, the opportunities that you have missed out on and the problems that youand your family have had balancing your care with your needs and the variouspressures that you and your family have had to face over the years.[5] After noting that personal circumstances did not "usually count for much" forserious drug offending, though acknowledging they do not "count for nothing", andrecognising that Mr Taylor had expressed genuine remorse, the Judge deducted threemonths' imprisonment.4Mr Taylor's affidavit[6] In explanation for the well over five-year delay in appealing his sentence,Mr Taylor sought leave to file an affidavit. He maintained that at the time he receivedhis sentence he was not told he had the right to appeal nor whether there was any meritin appealing and that he had just accepted his sentence.[7] Mr Taylor explained how he has talked to other inmates about their sentencesand that it was only in 2020 that he was "told about s 27 of the Sentencing Act [2002]".He was informed that "you can get discounts of up to 30 percent if you have had adifficult upbringing and are feeling disconnected from your culture". He has sincelearnt that a sentencing court recognises that such matters can play a role in why peopleoffend and that "you can get discounts on your sentence". He has also learnt thatspecialist report writers can prepare reports.[8] Mr Taylor stated that he had a difficult upbringing which he believes may haveimpacted on why he did the things that he did. He has since spoken with a lawyer whohas explained to him his rights of appeal and that a specialist report could be organisedfor him. Mr Taylor also affirmed that after speaking with his lawyer he learnt aboutyouth discounts and that at the time he did not know that such a discount was availableto him. His release date is in June 2021 but he says that if he can get his sentencereduced it would mean he would be home for Christmas.4 At [3]–[4].[9] For the purposes of his application to appeal out of time leave is granted toMr Taylor to file his affidavit.Leave to appeal out of time[10] Whether an extension of time should be granted to permit an appeal willdepend upon the interests of justice in the circumstances of the particular case.5The appeal court will focus on whether the delay can be adequately explained and themerits of the appeal.6 A long delay weighs heavily against leave being granted.7[11] In support of his application, Mr Taylor relied upon the recent decision ofAkuhata v R, where this Court acknowledged that a failure to engage the s 27 processto obtain information about the personal and cultural background of the offender couldprovide a proper basis to reconsider a sentence in an appropriate case.8 On behalf ofMr Taylor, Ms Priest submitted that the interests of justice favoured granting anextension of time. Counsel noted that Mr Taylor's liberty was at stake, that he hadspent a considerable amount of time in custody and that the merits of his appeal werestrong.[12] In opposition to leave being granted, Ms Mann, on behalf of the Crown,stressed the delay of over five years. While acknowledging that an explanation forthat delay had been proffered, it was submitted that Mr Taylor's application waspremised on the erroneous assumption that the current approach taken to sentencingfor commercial methamphetamine offending could be applied to his appeal.Fresh evidence[13] In support of the application for leave, Mr Taylor sought to adduce freshevidence in the form of a cultural report prepared pursuant to s 27. While we acceptthat the information the report contains is not fresh, dealing as it does with cultural,personal and background matters pertaining to Mr Taylor that would have been known5 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [95]–[99].6 R v Slavich [2008] NZCA 116 at [14]; Palmer v R [2011] NZSC 25, (2011) 25 NZTC 20–031 at[2]; McGeachin v R [2017] NZSC 16 at [4]–[5]; and F (SC129/2016) v R [2017] NZSC 34 at [15].7 R v Lee, above n 5, at [115].8 Akuhata v R [2020] NZCA 19 at [151].at the time of his sentencing, we accept that the interests of justice in hearing theapplication are best served by admitting the report.9[14] The information contained in the report appears cogent and credible. In anyevent, if an appeal is to be pursued because of the alleged failure of a sentencing courtto engage with s 27, the preparation of such a report would appear to be a necessaryprerequisite.10Discussion[15] The merits Mr Taylor's application to appeal his sentence after the elapse ofsuch a long period of time rests on his belief that he was entitled to discounts thatthe Judge erroneously failed to afford him, resulting in the imposition of a manifestlyexcessive sentence. The Crown's position is that Mr Taylor is labouring under amisapprehension that the recently revised approach to sentencing for commercialmethamphetamine offending applied at the time he was sentenced but that, in anyevent, the sentence imposed was not manifestly excessive.[16] Ms Priest sought to emphasise that the Judge made no mention of s 27 in hissentencing remarks and that based upon the cultural report now filed, a significantdiscount should have been provided for personal background factors which the reportwriter opines are causally connected with Mr Taylor's offending. We accept that isthe effect of the information set out in the careful and well-prepared report. We alsoaccept that a full bench of this Court in Zhang v R recognised how social and culturaldeprivation can impair an offender's choice and diminish their moral culpability.Where such constraints are shown to have causatively contributed to the offendingthey should be taken into account. Furthermore, such factors will requireconsideration in sentencing for methamphetamine offending.11[17] However, prior to Zhang, decisions of this Court had held that trafficking inmethamphetamine was so grave that minimal weight could be afforded for personal9 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; and Mark v R [2019] NZCA 121 at[16].10 Akuhata v R, above n 8, at [151].11 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159].circumstances and that they counted for little.12 While such an approach did not meanthat personal circumstances could never be relevant, as the Supreme Court inR v Jarden observed, the circumstances of offenders convicted of dealingcommercially in controlled drugs were required to be subordinated to the importanceof deterrence.13 This was the approach that applied at the time Mr Taylor wassentenced.[18] In Zhang this Court addressed whether the revised approach tomethamphetamine sentencing described in that judgment was to apply retrospectively.After noting that the decision represented only a change in sentencing practice, it heldthat its application was limited to appeals against sentence filed before the date of itsdelivery.14 Mr Taylor's appeal was filed nine months after Zhang was delivered.[19] Ms Priest submitted that while Zhang was not binding for the purposes of thisappeal, the provisions and principles of the Sentencing Act, including s 27, applied atthe time Mr Taylor was sentenced. That is undoubtedly correct but it does not alterthe fact that the Judge's approach to sentencing Mr Taylor reflected the guidance andpractice of this Court that applied at the time, including the predominance ofdeterrence over an offender's personal background and circumstances.[20] Ms Priest argued that this Court has not been reticent in relying upon Zhang inappeals that predated that guideline judgment to stress the importance of s 27 reportsthat provided a credible account of matters that may have impaired an offender'schoice and had causatively contributed to their offending. Carr v R was cited as anexample.15 However, in that case a s 27 report had been prepared and was beforethe sentencing Judge.[21] At issue in Carr was the approach taken by the Judge to the offender'sbackground and in particular to issues of systemic disadvantage and deprivationoutlined in the report. Unsurprisingly, the assessment of the sentencing Judge's12 See Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174]; Sarah v R [2013] NZCA 446 at[42]; and R v Wang [2014] NZCA 409 at [28].13 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].14 Zhang v R, above n 11, at [187]–[191], referring to New Zealand Bill of Rights Act 1990, s 25(g);and Sentencing Act 2002, s 6.15 Carr v R [2020] NZCA 357 at [60].approach was informed by the recent observations of a full bench of this Court.Moreover, the offending in that appeal involved a combination of robberies andoffences of violence and dishonesty. It was not a case involving commercialmethamphetamine dealing for which the offender had been sentenced over five yearsbefore.[22] Another difficulty faced by Mr Taylor in pressing his application for leave isthat the Judge had information before him relating to Mr Taylor's personalcircumstances and background. There is no record other than the Judge's summary ofwhat Mr Taylor's grandfather said on his behalf. It would not have been ascomprehensive and as well-presented as the s 27 report prepared for the purposes ofthis application. That said, the process adopted accorded with that expresslyanticipated by s 27. The section provides that when an offender appears before a courtfor sentencing the offender may request the court to hear any person(s) called bythe offender to speak on the personal, family, whānau, community and culturalbackground of the offender and the way in which that background may have relatedto the commission of the offence.16[23] Turning to the issue of youth. Ms Priest was critical of the Judge failing toprovide a discount for Mr Taylor's age at the time of the offending. It was submittedthat Mr Taylor's offending demonstrated impulsive decision-making, youthful poorjudgement and a failure to appreciate the consequences of his actions or theirseriousness. Mr Taylor turned 22 years old on the day of the last importation. Whileno longer a youth, we accept that Mr Taylor was still a relatively young man at thetime. The Crown sought to emphasise the organised and premeditated nature ofthe offending. However, we do not consider that aspect materially detracts fromthe well-established considerations that arise from an offender's age, includingthe rehabilitative potential of young people, the effect of imprisonment upon them andthe fact that young men, in particular, have not neurologically matured.1716 Sentencing Act, s 27(1)(a) and (b).17 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77] and [98].Decision[24] In assessing the merits of the appeal for the purpose of gauging whether leaveshould be granted we are required to focus upon the end sentence rather than theprocess by which it was achieved.18 Having done so, we do not consider there is abasis upon which to conclude that the sentence imposed was manifestly excessive.[25] There can be no realistic challenge to the starting point adopted by the Judge.Band three of Fatu, which provided a starting point of between nine and 13 years'imprisonment for the importation of large commercial quantities of methamphetamine(between 250 and 500 g), applied. The Judge acknowledged that Mr Taylor wasthe principal offender only for the first delivery but noted that he was significantlyinvolved in the three other importations, and that without him having introduced hisco-offenders to his overseas source, and making the necessary arrangements for them,the other three deliveries would not have occurred.[26] When considered against the amount of methamphetamine that couldreasonably be assessed as having been imported, the Judge's starting point at the lowerend of band three could be considered generous. The Judge was prepared to extend afull discount for Mr Taylor's guilty pleas despite his observation that they had not"come early". As noted, the Judge had the benefit of hearing from a member ofMr Taylor's whānau who spoke about Mr Taylor's upbringing and personalcircumstances. The Judge was also in receipt of a letter from the Kaumātua and KuiaCouncil of Mr Taylor's marae that spoke of his difficult childhood and background.To that extent, s 27 was in fact invoked at sentencing.[27] Neither the availability of more detailed information in the form of a writtenreport nor the recent change in sentencing practice for methamphetamine offendingleads us to conclude that the Judge erred in his approach or that a manifestly excessivesentence was imposed. Contrary to the argument advanced in written submissions, weconsider the Judge did take into account the representations made by Mr Taylor'sgrandfather which in combination with the acknowledged remorse of Mr Taylor18 R v MacCulloch [2005] 2 NZLR 665 (CA) at [50]; Ripia v R [2011] NZCA 101 at [15]; Mita v R[2012] NZCA 137 at [28]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].resulted in the three-month deduction. Mr Taylor's age was not explicitly referencedby the Judge, but we do not consider that aspect, when set against the moderate startingpoint towards the lower end of the available range, could be reasonably argued ashaving resulted in an excessive sentence.[28] We consider that Mr Taylor's application for leave was based on themisapprehension that the approach to the exercise of sentencing discretion in relationto commercial methamphetamine offending that has been modified in the wake ofZhang applied when he was sentenced over five years ago. We consider the approachtaken by the Judge, based as it was upon the applicable guideline judgment of thisCourt, was orthodox and not seriously capable of being argued as having resulted in amanifestly excessive sentence.[29] Having regard to the extent of the delay, the misapprehended basis upon whichthe appeal is sought to be brought and its limited merits, we decline leave.Conclusion[30] The application for leave to appeal out of time is declined.Solicitors:Crown Solicitor, Hamilton for Respondent