Filivao v The King
[2024] NZCA 103
•11 April 2024 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA98/2021 [2024] NZCA 103 |
| BETWEEN | KASINGA FILIVAO |
| AND | THE KING |
| Hearing: | 12 March 2024 |
Court: | Gilbert, Whata and Churchman JJ |
Counsel: | C A Hardy for Appellant |
Judgment: | 11 April 2024 at 9.30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal the conviction is dismissed.
BThe application for an extension of time to appeal the sentence is granted.
CThe sentence appeal is allowed in part.
DA minimum period of imprisonment of nine years is quashed and replaced with a minimum period of imprisonment of eight years and eight months.
EThe appeal against a cumulative sentence of 14 years and six months’ imprisonment is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Churchman J)
Table of Contents
Introduction [1]
Background [6]
The trial [11]
District Court sentencing decision [17]
Approach on appeal
Extension of time to appeal [23]
Appeal against conviction [26]
Appeal against sentence [30]
Issues
Delay [32]
Informed decision not to give evidence [35]
Included charge [37]
Insufficient directions [51]
Sentence appeal [56]
Result [65]
Introduction
Mr Filivao (the appellant) was convicted by a jury of causing grievous bodily harm (GBH) to his partner with intent to cause GBH,[1] and of a separate offence of assaulting his partner with intent to injure.[2] In September of 2016, he was sentenced by Judge McNaughton to 13 years’ imprisonment for the GBH offending, with a minimum period of imprisonment (MPI) of nine years, and 18 months’ imprisonment on the assault with intent to injure charges, to be served cumulatively. In March of 2021, more than four years out of time, he seeks an extension of time to bring an appeal against his conviction and sentence.
[1]Crimes Act 1961, s 188(1). Maximum sentence of 14 years’ imprisonment.
[2]Section 193. Maximum sentence of three years’ imprisonment.
The appellant alleges that a miscarriage of justice has occurred necessitating a quashing of his conviction because:
(a)Trial counsel erred by failing to ensure the appellant made a free and informed decision about whether or not to give evidence at trial.
(b)The Judge erred in refusing to put what was said to be an included charge to the jury; and
(c)The Judge’s directions were deficient.
When an application for an extension of time to appeal is as far out of time as this one, exceptional circumstances are required to grant the extension of time.[3]
[3]Butcher v R [2015] NZCA 102 at [7].
In order for the interests of justice to justify the granting of the application the delay will need to be explicable and there will need to be some merit in the proposed appeal.
The appellant also alleges that his sentence was manifestly excessive, because:
(a)The MPI is excessive, as nine years is more than two-thirds of the 13‑year sentence; and
(b)The uplift of six months for his previous convictions was excessive.
Background
The appellant and the victim were in a relationship for around nine months and lived together at an address in Mangere. Witnesses and family described the relationship as violent.
In June 2014, the victim and the appellant were at the home of a relative of the victim. The appellant at one point began throwing food at the victim. The relative left to use the bathroom for about 10 minutes, and when he returned, he found the victim lying on the floor. He saw the appellant stomp on her face with his foot, and then after she got up, the appellant pulled her hair. The relative got between them and was hit by a beer bottle after the appellant threw one at the victim. The relative saw the appellant punch the victim in the head as they left the house. There was also an altercation between the relative and the appellant, but the appellant was not charged in respect of that incident.
On Friday 19 December 2014, some six months after the earlier incident, the appellant sent threatening text messages to the victim in Tongan telling her he would beat her up and kill her. The victim stayed with friends on the Saturday and went to her aunt’s place on Sunday 21 December. The appellant picked her up from there. In the evening of 21 December, a series of loud bangs and thuds were heard by the neighbours of the appellant and victim, along with swearing in Tongan and screaming.
Later on that evening the appellant called his ex-wife to tell her he was unable to have their children over and asked her to come and pick up their belongings. He asked her to wait on the road and not come up the driveway. On the morning of Monday 22 December 2014, the appellant texted his employers to say he was sick and would not be coming in to work. He then got a friend to help him pick up the victim’s car from her aunt’s place and drop it back at their address. When the appellant spoke to his neighbours at lunchtime that day, he was described as nervous and fidgety, and not wanting his neighbour to come inside the house.
At around 5.00 pm on that Monday, the appellant called an ambulance, saying the victim was sleeping and would not wake up. He later explained that she had fallen in the shower. When ambulance staff arrived, they found the victim lying unconscious on a mattress which was heavily soiled with urine, and with serious facial injuries including both of her eyes being swollen shut. They also noticed the appellant had significant swelling to the knuckles on his hand. The victim eventually ended up in Auckland Hospital. As a consequence of the assault by the appellant the victim suffered a serious brain injury which has meant that she will remain in care for the rest of her life being unable to undertake such basic functions as feeding herself.
The trial
At the trial the appellant elected not to give evidence. After deliberating for around three hours the jury came back with the following question “[w]hat constitutes grievous bodily harm in this case — if we ignore the brain injury do the other injuries – severity and number – constitute GBH?”
Both counsel agreed that the answer to the question was “no” and the Judge directed the jury accordingly.
Around an hour later the jury came back with a further question:
We have reached a verdict on the [June 2014] charge but at this stage we are not in agreement on the first [charge] and we are unlikely to come to an agreement on this charge. Is there, perhaps, a lesser charge we could consider as we all agreed he assaulted her.
The Judge allowed counsel to reflect on the issue overnight. The Crown opposed the adding of a lesser charge as did defence counsel whose position was that the appellant denied assaulting the victim at all.
The Judge declined to leave any included charge to the jury noting that the jury had not received any direction on such a charge.
The Judge then gave the jury a Papadopoulos direction and sent them out to continue deliberating.[4] They returned unanimous guilty verdicts around an hour later.
District Court sentencing decision
[4]R v Papadopoulis [1979] 1 NZLR 621 (CA). The current form of a Papadopoulis direction is set out in R v Accused (CA87/88) [1988] 2 NZLR 46 (CA).
The sentencing Judge set the starting point at 13 years’ imprisonment due to the gravely serious injuries inflicted on the victim which meant her quality of life was low and her life expectancy could be much reduced, as well as the clear premeditation established by the text messages sent by the appellant to the victim prior to his assault on her.[5] The Judge stated the only reason it was not set at 14 years was the lack of the use of a weapon.[6]
[5]R v Filivao [2016] NZDC 17029 at [30].
[6]At [30].
The Judge increased the sentence for the June 2014 charge of assault with intent to injure, for stomping on the victim’s head, by one year’s imprisonment on a totality basis, noting that this charge alone would attract a sentence somewhere between 18 months’ and two years’ imprisonment.[7]
[7]At [34].
The Judge gave an uplift of six months to take into account the appellant’s three prior convictions for male assaults female.[8]
[8]At [35].
Finally, the Judge imposed an MPI, which he stated was primarily for the purposes of denouncing the serious and premeditated assault and deterring the appellant from committing similar offences. The Judge stated he saw nothing in the pre-sentence report to persuade him to not impose the maximum MPI available; he found the appellant showed no remorse, no responsibility, and no insight into the damage caused. He also found the appellant had a high risk of committing other serious violent offences against women.[9]
[9]At [36].
As a result, the Judge imposed a sentence of 14 years and six months’ imprisonment with an MPI of nine years and five months for the GBH charge and 12 months’ imprisonment for the assault with intent to injure charge, to be served concurrently with the GBH sentence.[10]
[10]At [37]–[38].
Shortly after imposing the sentence the Judge recognised that he had imposed a sentence greater than the maximum penalty of 14 years’ imprisonment for causing GBH with intent to cause GBH. A resentencing was therefore required, and it took place on 5 September 2016. The Judge amended the sentence to 13 years’ imprisonment for the GBH charge and a cumulative sentence of 18 months’ imprisonment for the assault with intent to injure charge, resulting in a final sentence of 14 years and six months’ imprisonment with an MPI of nine years.[11]
Approach on appeal
Extension of time to appeal
[11]R v Filivao [2016] NZDC 17165 at [2]–[5].
As this Court has observed in R v Slavich, extension of time applications will routinely reduce to two questions.[12] First, why was the appeal filed late? Secondly, what, if any merit, does the prospective appeal appear to have?
[12]R v Slavich [2008] NZCA 116 at [14].
The criteria for an extension of time to appeal were discussed in the Full Court decision of R v Knight and affirmed, again by the Full Court, in R v Lee.[13] Knight stated that:[14]
The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interest of the individual applicant in having the conviction reviewed. Also relevant is ‘the respect which is traditionally shown for the liberty of the subject’ (R v Hawkins [1997] 1 Cr App R 234 at p 239).
These considerations are of particular importance when a later decision of a superior Court shows that the decision from which it is sought to appeal was or might have been wrongly decided. As Somers J, speaking for the Court in Stowers v Auckland City Council (Court of Appeal, Wellington, CA67/82, 2 September 1983), put the point: ‘In such circumstances the mere assertion of the exposed error without more is not enough. The applicant for leave must show special circumstances – circumstances that is to say which are particular to the case and which lead to the conclusion that justice requires that leave be given’ (p 4).
[13]R v Knight [1988] 1 NZLR 583 (CA); and R v Lee [2006] 3 NZLR 42 (CA). See also Cheung v R [2021] NZCA 175.
[14]R v Knight, above n 13, at 587.
The Court must balance the competing interests: on one hand, the interest in finality, and in the other, the interests of the individual applicant. Other relevant considerations are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for the delay, the extent of the impact on others similarly affected and the administration of justice, and the absence of prejudice to the Crown.[15] There must be special circumstances to justify departing from the principal of finality,[16] with the Court describing an extension as an “indulgence”.[17]
Appeal against conviction
[15]At 589.
[16]At 589.
[17]R v Lee, above n 13, at [102].
A first appeal against conviction is governed by s 232 of the Criminal Procedure Act 2011 (CPA). The Court must allow an appeal of a decision in a jury trial if the Court is satisfied that, having regard to the evidence, the jury’s verdict was unreasonable, or a miscarriage of justice has occurred for any reason.[18] The Court must dismiss the appeal in any other case.[19] If the appeal is allowed, the Court must set aside the conviction.[20] The Court must also direct that a judgment of acquittal be entered, direct that a new trial be held, substitute a conviction for a different offence or make any other order it considers justice requires.[21]
[18]Criminal Procedure Act 2011, s 232(2)(a) and (c).
[19]Section 232(3).
[20]Section 233(2).
[21]Section 233(3).
A “miscarriage of justice” is defined as any error, irregularity, or occurrence in or in relation to or affecting the trial that:[22]
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[22]Section 232(4).
A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.[23] The appellant does not have to establish that the verdict was “actually is unsafe” but rather that there is a real risk the verdict would be unsafe.[24]
[23]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 (SC) at [110].
[24]At [110].
An “unfair trial” exists when errors are prejudicial or unacceptably give rise to the appearance of unfairness. A verdict will not be set aside merely because there has been an irregularity in one, or even more than one, facet of the trial, and it is not every departure from good practice which renders a trial unfair.[25] A miscarriage is “more than an inconsequential or immaterial mistake or irregularity”.[26] Rather, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate Court must condemn the trial as unfair and quash the conviction as unsafe.[27] The assessment of the fairness of a trial is to be made in relation to the trial overall.[28] The error, irregularity or occurrence must be of sufficient seriousness to warrant the setting aside of the conviction without further inquiry into the potential effect of the error.[29]
Appeal against sentence
[25]R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
[26]Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
[27]Randall v R, above n 25 at [28], cited with approval in R v Condon, above n 25.
[28]Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [35].
[29]At [41].
The sentence appeal is brought under ss 244 and 250 of the CPA. It is an appeal against discretion and must only be allowed if the Court is satisfied that there was an error in the sentence imposed and a different sentence should have been imposed.[30] The Court must dismiss the appeal in any other case.[31]
[30]Criminal Procedure Act, s 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
[31]Criminal Procedure Act, s 250(3).
In an appeal against sentence, the focus is on the final sentence and whether it was in the available range, rather than the exact process by which it was reached.[32] An appellate court must therefore exercise an appropriate degree of restraint and will intervene only where the sentence imposed is “manifestly excessive” on the basis of some material error so that a different sentence should be imposed.[33] An appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.[34]
Issues
Delay
[32]Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 30, at [36].
[33]Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau, above n 30, at [32].
[34]Tutakangahau, above n 30, at [36].
The appellant seeks an extension of time to appeal out of time. The appeal period expired in October 2016. In his affidavit dated 16 March 2023, the appellant states he filed his appeal in February 2021 rather than earlier because his trial lawyer, Martin Hislop, told him he did not have a chance on appeal. The appellant also submitted that he believed he needed some money to appeal and that it was too late to do so after a conversation with lawyer Nalesoni Tupou in 2016, and that he only appealed in 2021 after becoming aware he could apply for legal aid to cover the costs of an appeal.
The appellant gave evidence before us as did Mr Hislop. It is clear that, in addition to receiving advice from Mr Hislop shortly after the trial that an appeal had no prospects of success, the appellant also consulted Mr Tupou who referred him to a criminal specialist, Mr Edgar, not long after that with both Mr Tupou and Mr Edgar visiting him in prison to discuss that possibility of an appeal with him.
We do not accept the appellant’s claim that he was not able to pursue an appeal because he did not understand how to apply for legal aid. He had applied for and received legal aid for the trial.
Informed decision not to give evidence
The appellant complains about the advice Mr Hislop gave him on whether or not to give evidence. He submits that his instructions to Mr Hislop, where he agreed not to give evidence, were not fully informed. He says that was because Mr Hislop had formed a fixed view that he should not give evidence and steered him forcefully towards that outcome. The appellant submits that a miscarriage of justice consequently occurred.
Having listened to the appellant, Mr Hislop and Ms Shendi, (a junior lawyer who assisted Mr Hislop at trial), we are satisfied that there is no foundation for the appellant’s claims that he did not make a free and informed decision about whether to give evidence. We are satisfied that Mr Hislop did not put any improper pressure on the appellant not to give evidence and note the appellant’s concession under cross-examination that he was aware that it was his decision whether or not to give evidence.
Included charge
The appellant’s second complaint is that the Judge erred in deciding not to put to the jury what he described as an “included” charge of injuring with intent to injure, resulting in a miscarriage of justice.
The appellant’s reasoning was that GBH necessarily includes at least an injury, and that causing GBH with intent to cause GBH necessarily includes the lesser intent of causing injury. The appellant also argues that:
(a)A charge of injuring with intent to injure was not trifling in comparison to the charge of causing GBH with intent to cause GBH.
(b)The issue of an alternative included charge was not raised too late, and it is unlikely that parties would have run their cases differently had there been an alternative lesser charge.
(c)The jury would not have been distracted by the introduction of an alternative included charge, as they were already distracted by the issue of a lesser charge.
The appellant submits this resulted in a real risk that the jurors, who he says were not unanimously convinced the appellant caused the brain injury, convicted him anyway because they did not wish to acquit the appellant as they believed he still had assaulted the victim.
The starting point is whether or not a charge of injuring with intent to injure was in fact an “included” charge. Section 143 of the CPA provides:
143 Included Offences
If the commission of the offence alleged (as described in the enactment creating the offence or in the charge) includes the commission of any other offence, the defendant may be convicted of that other offence if it is proved, even if the whole offence in the charge is not proved.
“Includes” in this context means “necessarily includes”[35] and proof of all the elements of the charged offence must, of necessity, mean that the defendant has committed the lesser, included offence.[36]
[35]See Ayers v R [2023] NZCA 43 at [13], citing R v King (1900) 19 NZLR 409 (CA) at 410, which was applied in R v Lamb [1959] NZLR 232 (CA) at 234.
[36]R v Norris (1988) 3 CRNZ 527 (HC) at 529.
The evidence at trial was that, in addition to several head injuries, the victim had sustained numerous injuries to other parts of her body. However, it was not part of the Crown case that these other injuries amounted to GBH.
In respect of the charge of causing GBH with intent to cause GBH, the sole issue was whether the appellant had caused the brain injury. The Crown did not contend the various injuries to the other parts of the victim’s body were causative of the brain injury.
The defence case was that, not only was the defendant not responsible for the brain injury, but he had also not caused any of the other injuries either as he did not assault her that night or the next day.
Both counsel closed to the jury on the basis that the sole issue on that charge was whether the appellant caused the brain injury and had intended to do so and the Judge summed up on the same basis.
We do not accept that, on the facts of this case, the charge of causing GBH with intent to cause GBH (the brain injury) necessarily included a charge of injuring the victim with intent to do so by inflicting injuries to other parts of the victim’s body unconnected with the brain injury.
In terms of the Supreme Court’s decision in Winter v R, it cannot be said that there is a real possibility that all of the additional elements of the lesser included charge are proved on the evidence without any of the additional elements of the principal charge.[37]
[37]Winter v R [2019] NZSC 98, [2019] 1 NZLR 710 at [142].
The Supreme Court in Winter had endorsed the approach of this Court in R v Mokaraka[38] to the effect that the question of putting a lesser charge need not be addressed where it simply does not arise on the way in which the case was presented.[39]
[38]R v Mokaraka [2002] 1 NZLR 793.
[39]At [32], citing R v Fairbanks (1986) 83 Cr App R 251 ((CA) at 255.
In Mokaraka the Court of Appeal had addressed the factors that tell against the putting of an included charge. They include:[40]
(a)Whether the charge was “trifling” relative to the principal charge. (Given that the maximum penalty for the lesser charge is five years’ imprisonment as compared to 14 years for the more serious charge, it cannot be said to be trifling. However this factor is outweighed by the fact it was raised too late, would have distracted the jury and would potentially have damaged the cases of both the Crown and defence.)
(b)Whether the included charge is raised too late in the piece resulting in the potential for a party to be prejudiced by the way the trial had been conducted. (Here there was obvious potential for prejudice to both parties as they had each run their entire case on the basis that whether or not the appellant had caused the brain injury sustained by the victim was the central issue. Neither wanted the lesser charge to be put.)
(c)Whether the inclusion of the lesser charge would simply provide the jury with a pretext for softening the verdict in circumstances where, if the jury discharged its duty, it could only find the defendant guilty or not guilty of the principal charge. (Here the potential for distraction was obvious. This was an “all or nothing case.” Either, as the Crown contended, the appellant caused the brain injury, or, as the defence contended, he never assaulted the victim at all.)
[40]R v Mokaraka, above n 38, at [16].
On the other hand, it is also acknowledged that an included charge is more likely to be favoured where “the jury might otherwise convict out of a reluctance to see the accused get clean away with what on any view was disgraceful conduct”.[41] We are not of the opinion that this was such a case. The factors, taken together, support the conclusion that there was no proper basis for requiring the lesser charge to be put to the jury.
Insufficient directions
[41]At [17].
The appellant submits that the Judge gave insufficient directions to the jury, as he did not warn them against the risk of convicting on the basis that they did not want to let him go free, and instead put significant pressure on the jury to reach a verdict by giving them a Papadopoulos direction. The appellant contends that giving a Papadopoulos direction immediately after advising the jury that their preferred verdict was not available amounted to improper pressure. As a result, even if the Judge was justified in not leaving the alternative included charge to the jury, the appellant submits that the way the Judge dealt with that decision greatly increased the risk of an unsafe verdict.
The respondent submits that although the Judge did not provide an express warning such as in Saili v R,[42] he clearly communicated to the jury that if they could not agree, the appellant would be discharged and a re-trial would be held. The respondent contends that the Judge did not impose undue pressure on the jury, as there was no prospect the appellant would go free if they did not convict, and they already indicated that they had concluded he was guilty of injuring with intent to injure in respect of the June 2014 charge, and thus the appellant would be held accountable for violence against the victim.
[42]Saili v R [2012] NZCA 149.
We accept the Crown’s submissions. Because the jury had already reached the conclusion that the appellant was guilty of the June 2014 assault, there was never a possibility that he was not going to receive some punishment. The Judge also clearly told the jury that if they could not agree on the GBH with intent to cause GBH charge, there would be a retrial.
In relation to the Papadopoulos direction the Supreme Court has noted that:[43]
… whether a Papadopoulos direction should be given is ultimately a matter for the trial Judge’s discretion and that a substantial degree of latitude should be given to trial Judges in this respect.
[43]Hookway v R [2008] NZSC 21 at [3].
Given the time that the jury had been deliberating (more than half a day) and the nature of the questions they had been asking (indicating they were taking their role seriously), a Papadopoulos direction was a reasonable one.
Sentence appeal
The appellant submits the six-month uplift for past offending was disproportionate to the community-based sentences received for that offending and amounted to double punishment for past offences. The appellant argues that no uplift should have been applied, and that the sentence is therefore manifestly excessive. The appellant submits that the MPI, despite already being served, exceeded the statutory maximum, as it was imposed on the total sentence rather than a particular sentence as required.
Except for the MPI, which they agree is excessive and needs to be corrected, the respondent submits that the sentence was within range.
It was common ground that the MPI imposed exceeded the maximum. In that respect, there was clearly a miscarriage of justice. This was recognised by the Crown who did not oppose allowing the appeal on this ground of leave. It is an extraordinary circumstance. We therefore grant an extension of time to appeal the sentence.
It was not contended that an MPI should not have been imposed. For the same reasons as the judge, we are satisfied that this case justified the maximum MPI available. That is two thirds of 13 years or eight years and eight months, not nine years.
Having granted an extension of time to appeal the sentence we need to consider whether there are any other defects in the sentence that have resulted in a miscarriage of justice.
The appellant’s specific claim is that the uplift of six months for his prior offending was excessive. However, although in the initial sentence calculation the Judge had referred to such an uplift, when he resentenced the appellant, he restructured the sentence to be slightly different. The appellant was sentenced to 13 years’ imprisonment on the GBH offence and 18 months’ imprisonment for the June 2014 offending, to be served cumulatively.
The June 2014 offending itself was serious, involving stomping on the head of the victim while she was on the ground, pulling her hair and punching her. As the Judge noted, if it had been sentenced on its own it would have justified a sentence of between 18 months’ and two years’ imprisonment.
In assessing what the appropriate overall penalty is, the Court must have regard to the totality of the sentence. We accept that the starting point for the GBH offence could have been higher than 13 years, as per the guideline decision in Taueki.[44] We agree with the Judge’s comments about the severity of the consequences of the offending having left the victim as a shell of a person and effectively taken her life from her and from her family. We also accept as aggravating features of the offending its clear premeditated nature, the fact it involved multiple blows to the head and the delay by the appellant in seeking treatment which caused the injuries to be much worse than they might otherwise have been.
[44]R v Taueki [2005] 3 NZLR 372 (CA).
Standing back and looking at the totality of both instances of offending we are satisfied that, based on the authorities referred to by the Judge, the total end sentence of 14 years and six months’ imprisonment was within range and that there is no basis for disturbing it on appeal.
Result
The application for an extension of time to appeal the conviction is dismissed.
The application for an extension of time to appeal the sentence is granted.
The sentence appeal is allowed in part.
The minimum period of imprisonment of nine years is quashed and replaced with a minimum period of imprisonment of eight years and eight months.
The appeal against a cumulative sentence of 14 years and six months’ imprisonment is dismissed.
Solicitors:
Public Defence Service, Hamilton for Appellant
Crown Law Office ǀ Te Tari Ture o te Karauna, Wellington for Respondent
13
9
0