Currie v R [2010] NZCA 449 (28 September 2010)

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Currie v R [2010] NZCA 449 (28 September 2010)

Last Updated: 6 October 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA528/2009 [2010] NZCA 449

BETWEEN LLOYD NATHAN CURRIE
Appellant

AND THE QUEEN
Respondent

Hearing: 9 August 2010

Court: Chambers, Rodney Hansen and Heath JJ

Counsel: P J Kaye for Appellant
M D Downs for Respondent

Judgment: 28 September 2010 at 2 pm

JUDGMENT OF THE COURT

1. The appeal against conviction is allowed in part, in that the conviction on count 2 (threatening to kill Michael Downey on 25 May 2008) is quashed and a verdict of acquittal entered thereon.
2. In all other respects, the appeal against conviction is dismissed.

100. The appeal against sentence is dismissed.
     

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1] After trial in the District Court at Papakura before Judge McAuslan and a jury, Mr Currie was convicted of rendering Michael Downey incapable of resistance with intent to facilitate the crime of aggravated robbery, threatening to kill Mr Downey and the aggravated robbery of his Holden motorcar. All this offending took place on 25 May 2008. He was also convicted of possession of a firearm and ammunition. Prior to trial, he pleaded guilty to other charges which, while related to the 25 May offending, took place on a different occasion, namely at his deposition hearing on 12 September 2008. These were charges of threatening to kill Mr Downey and Detective David Honiss, the officer in charge of the prosecution relating to the 25 May offending. He was sentenced to a total of ten years imprisonment.
[2] Mr Currie appeals against his convictions on all the counts to which he pleaded not guilty, except possession of firearms and ammunition, on the grounds that the Judge misdirected the jury. He also appeals against his sentence as being manifestly excessive.

Facts

[3] Mr Downey said in evidence that on 25 May 2008 he was at his home in Papakura when Mr Currie visited. He had previously met Mr Currie although he did not know him well. Mr Currie was accompanied by his partner, Lisa Smyth. Mr Downey invited the couple in.
[4] Mr Downey said Mr Currie began asking him questions about his will and what would happen to his possessions if he died. He said Mr Currie then left the house briefly and returned with a shotgun. After abusing him, Mr Currie hit him several times in the face with the barrel and butt of the gun. Mr Downey sustained facial injuries – a swollen eye and lacerations to the chin and cheek – and a gash to his leg. Mr Downey said Mr Currie then produced a blank piece of paper and directed Ms Smyth to write on it that Mr Downey would “gift” his Holden motorcar. He told Mr Downey that if he went to the police, he would have him and members of his family killed or he would tell the police that Mr Downey had raped his girlfriend and a friend of hers. Mr Currie and Ms Smyth later left driving the Holden.
[5] Mr Currie gave evidence in his own defence. His account was starkly different. He said he arrived at the house with two documents which had already been signed by Mr Downey. One was dated 6 January 2008 and recorded an agreement to pay the sum of $400,000 “or face repossession”. The other document, dated 13 May 2008, recorded an agreement to gift the Holden motorcar to two named men.
[6] Mr Currie said his understanding was that the debt was in fact $40,000. He said he had had nothing to do with the preparation of the documents. He had been instructed to ask Mr Downey if he could pay instalments on the loan and to take the Holden if he could not afford to.
[7] Mr Currie said Mr Downey came to the door armed with a shotgun. He and Ms Smyth went inside and sat down. Mr Downey suddenly picked up the gun and pointed it at Mr Currie’s head. Mr Currie said he punched Mr Downey in the eye and was able to disarm him, hitting him in the face with the stock of the gun in the process. He agreed that he and Ms Smyth later left in the Holden, taking with them, he said, the gun produced by Mr Downey and two other weapons and ammunition. The shotgun and ammunition were found when police searched the house occupied by Mr Currie and Ms Smyth and were the subject of counts 4 and 5. When asked if he had got rid of the other two guns before the police came, Mr Currie said, “Yeah, I think so”.

Misdirections

[8] It is convenient to consider the issues arising from the Judge’s summing up by addressing first the criticisms of her directions in relation to count 3, the charge of aggravated robbery. We will then deal with count 1 which incorporates many of the elements of count 3, and conclude with the complaints about count 2.

Count 3

[9] At the beginning of her summing up, the Judge distributed a memorandum to the jury setting out the elements of each charge. The memorandum began:

Elements of the charges the Crown must prove beyond reasonable doubt:

[10] The section of the memorandum dealing with count 3 reads:

Count 3 – Aggravated Robbery

1. Theft

Theft is the taking of someone else’s property dishonestly and without claim of right, with the intention of permanently depriving the owner of it:

(a) taking – deliberate physical moving

(b) dishonestly and without claim of right – i.e. without a belief that there was a right to take it

(c) intention to deprive the owner of it permanently i.e. not a borrowing

2. Violence or threats of violence

The violence or threats of violence were intended to extort the property being stolen or to prevent or overcome resistance to the property being stolen

3. The robbery was aggravated

During the robbery the accused was armed with an offensive weapon – a shotgun

[11] We understand that the Judge distributed the memorandum to counsel before she began her summing up. Mr Kaye did not criticise it at the time or in his written submissions for the purpose of the appeal. The concern he raised orally, for the first time, was that the Judge had not adequately put the defence case that the taking of the car was not dishonest because Mr Currie believed he was entitled to repossess it. Mr Kaye accepts that the Judge correctly summed up on all other aspects of count 3 and that the jury was entitled to find proved beyond reasonable doubt that:

1. Mr Currie took the car;
2. In taking it, he intended to deprive Mr Downey of it permanently;

100. In taking the car, he used violence in order to overcome resistance to the car being taken;

4. When he took the car he was armed with an offensive weapon, a shotgun.

[12] The elements of the offence which remain in issue (and which Mr Kaye says the Judge failed adequately to put to the jury) are those which are captured by paragraph 1(b) of the memorandum, whether Mr Currie acted dishonestly and without claim of right. It is helpful to analyse the evidence bearing on these issues before examining the criticisms of the Judge’s summing up.
[13] We begin with the “claim of right” element. This aspect of the defence was based on an assertion that Allan Boyd, who had allegedly given Mr Currie his instructions, had a right to repossess the car if Mr Downey did not repay $40,000 he had borrowed. This arrangement was said to be evidenced by the document, purportedly signed by Mr Downey and dated 6 January 2008. It is handwritten and reads as follows:

Without prejudice 6-1-2008

I Michael John Downey

Of 25 Eastburn St Papakura

Auckland

Agree to pay the sum of $400,000 back by 12th May 2008 to Highway 61 MC or face repossession of the value of the finance/loan received $400,000.

Sign: MJ Downey

[14] An immediate difficulty with this element of the defence is that there was no evidence at all to support the fact that Mr Downey had borrowed money from Mr Boyd or offered his car as security. Mr Downey’s evidence that he had never signed the document or borrowed money from Mr Boyd was not contradicted. (He was not asked about Highway 61 MC). Mr Boyd did not give evidence. Mr Currie did not know anything about the financial arrangements (if any) between Mr Boyd and Mr Downey. His evidence was simply that he had been given two pieces of paper and had been told by Mr Boyd to repossess the car. Significantly, the document does not purport to give any rights over the vehicle in specific terms and refers to a sum of $400,000, whereas Mr Currie said he believed the debt to be $40,000.
[15] The second document dated 13 May 2008, which Mr Downey said he was forced to sign on 25 May, literally with a gun pointed at his head, also could not support a claim of right. It reads as follows:

Without prejudice 13 May 2008

I Michael John Downey

Of 25 Eastburn St

Papakura Auckland agree to

Gift koha

(1) Item being

M1 HSV

Holden Commodore VY

2004 Ultra Violet Vehicle

To Allan Boyd, David Tooley

Of 2 Treagon Pl

Mangre East

Auckland

Sign: MJ Downey

On its face the document purports to record an agreement on Mr Downey’s part to gift his car to Mr Boyd and David Tooley. This is not the claim Mr Currie was asserting as the basis for his claim of right.

[16] There was, accordingly, no evidence to support the assertion of a claim of right. The Judge could and should have directed the jury accordingly.
[17] It follows that (apart, of course, from a denial of violence and the use of a firearm) the only defence available to Mr Currie was that he honestly (if mistakenly) thought he was entitled to take the car. The Crown was required to prove that he did not have that honest belief. If the jury accepted Mr Downey’s version of events, this element of the offence would be established. Even on Mr Currie’s account of events, it was scarcely plausible that he honestly believed he was entitled to take the car.
[18] Against that background, we turn to consider Judge McAuslan’s summing up as it related to the defence to count 3. She first commented on the defence case at [32] of her summing up. After referring to the elements of the crime of aggravated robbery, she said:

[32] ... You have to be satisfied about all of those things, that there was a theft that day, one or more of them took the motor vehicle, that they did use violence or threats of violence, and that Mr Currie was armed with the shotgun at the time. Those are matters entirely for you and the defence to that, of course, is a denial. Ms Smyth played no part in what Mr Currie was doing and Mr Currie was not there to rob the complainant at all. He was simply doing this debt collection. I will return to that in a moment. Bear in mind again Ms Smyth is charged as a party.

She returned to the topic at [61]:

The complainant is the aggressor, said to (sic) Mr Kaye to you, not the accused. At no stage was there ever an intention to commit an aggravated robbery by violent means. That simply never happened said Mr Kaye, so count one is dead in the water, as is count two because Mr Kaye submits that never happened. The accused, Mr Currie, never threatened to kill Mr Downey at all. Count three, the defence to that on behalf of Mr Currie is a complete denial. That never happened. Mr Currie was simply there on a debt collecting exercise, you will recall, and he was just calling in in terms of the agreement, that is why the Holden was taken. That is not aggravated robbery.

[19] The defence case was not, of course, a complete denial. But in both passages the Judge immediately qualified what she had said by reminding the jury that Mr Currie was undertaking a debt collection or just “calling in” in terms of the agreement.
[20] We surmise that in referring to the defence as “a complete denial” the Judge was referring to Mr Currie’s denial of an unprovoked assault of Mr Downey and that he was responsible for bringing the shotgun to the house. In going on to explain Mr Currie’s position as involving a debt collecting exercise justified by the terms of the agreement, she made clear that Mr Currie was also asserting that he had a right to take the car by virtue of the terms of the agreements. The jury could not have been left in any doubt that the factual issues they had to focus on were whether the documents relied on by Mr Currie were authentic and gave rise to an honest belief that he had a right to take the car. The Judge’s summing up on this issue was succinct but sufficient.

Count 1

[21] In count 1 Mr Currie and Ms Smyth were charged that they:

... on or about 25 May 2008, at Auckland, with intent to facilitate the commission of a crime, namely aggravated robbery, by violent means rendered Michael Downey incapable of resistance.

The charge was brought under s 191(1)(a) of the Crimes Act 1961.

[22] In the written memorandum distributed by the Judge the elements of count 1 were identified as:

1. Accused had the intent to facilitate the commission of a crime – aggravated robbery.
2. Rendered complainant incapable of resistance by violent means.

The memorandum went on to set out the factors to be considered for the purpose of the defence of self defence raised by Mr Currie. We do not need to set out that part of the memorandum, as Mr Kaye accepted that the Judge’s directions on self-defence were adequate.

[23] Mr Kaye also accepted that the Judge’s directions in relation to the second element of the offence – rendering the complainant incapable of resistance by violent means and on self-defence – were adequate. His complaint (also raised for the first time on appeal) was that the Judge failed to properly direct the jury on the issue of intent.
[24] That left the Judge’s direction in relation to the first element of the offence. Mr Kaye accepted that the first element was correctly recorded in the Judge’s memorandum, but he submitted that the Judge erred when she paraphrased the “crime” committed as “the taking of the Holden”. He submitted that Mr Currie had always admitted taking the Holden; the issue was rather whether that taking was justified by a claim of right. Mr Kaye submitted the Judge should have explained the elements of aggravated robbery in much more detail.
[25] This submission would be irresistible had the indictment not also contained count 3. In context, it was clear the Judge meant by “the taking of the Holden” the aggravated robbery which was the subject of count 3. When she got to count 3 in the summing-up, she did adequately set out its elements and, for the reasons already given, we have found the conviction on that count to be safe. In these circumstances, we do not consider there was a misdirection on the first element. This was a case where the accused not only had the intent to facilitate an aggravated robbery; he actually committed it. Once self-defence was eliminated as a reasonable possibility and once the aggravated robbery was established, a conviction on count 1 really became inevitable.
[26] We accept the summing-up on the first element could have been more detailed, but in the circumstances it was adequate.
[27] Mr Downs, for the Crown, submitted that this case ultimately did not turn on legal distinctions but rather on which of the competing versions of events the jury accepted. In broad terms, we accept that submission. It is clear from the verdict on count 3 (which is unimpeachable) that the jury did accept Mr Downey’s version of what happened on 25 May. They rejected as implausible Mr Currie’s version. Count 1 was in many ways just a variation of the matters in issue in count 3. Whatever slight infelicities there may have been in the summing-up on count 1, they did not lead to a miscarriage of justice. We can be confident that the jury’s verdict on count 1 is safe.
[28] Before parting with this aspect of the case, however, we observe that the Crown, in choosing to lay a charge under s 191(1), introduced an unnecessary level of complexity into the trial. The Crown could have presented its case on the charge of aggravated robbery in a way which readily captured the violence that preceded the taking of the vehicle. To the extent that a separate charge to cover the violence was thought desirable, a charge of assault with intent to injure or to cause grievous bodily harm would have sufficed. The Crown case was that the intended crime of aggravated robbery was committed. In such circumstances, a charge under s 191 served only to complicate the job of judge and jury.

Count 2

[29] Count 2 was the charge of threatening to kill Mr Downey. The misdirection relied on relates to propensity evidence adduced by way of an agreed statement of facts under s 9 of the Evidence Act 2006.
[30] The evidence related to the conduct of Mr Currie at the depositions hearing. The statement recorded that as Mr Downey was giving evidence, Mr Currie gestured with his fingers, forming his hand to imitate a pistol, pointing at the complainant and imitating pulling a trigger. After the officer in charge made the Court aware of what had happened and the Court was being cleared, Mr Currie yelled to Mr Downey that he was going to kill him. He also threatened the officer in charge that he would find out where he lived and come and kill him. The statement of agreed facts concluded that as a result of his conduct, Mr Currie had been charged with threatening to kill Mr Downey, threatening to kill the officer in charge and attempting to dissuade Mr Downey by threats from giving evidence.
[31] The Judge directed the jury in relation to the evidence in two passages of her summing up. First, she said:

[28] You might think, Madam Foreperson, Members of the Jury, that the agreed facts are relevant in particular to count two. The agreed facts, which the Registrar read to you, were concerned with what happened after the events we are concerned with on the 12th of September in this Court at the depositions hearing. This was agreed to by the Crown and by Mr Kaye, on behalf of Mr Currie. You will notice when you get the piece of paper with you that it includes that Mr Currie yelled to the complainant on that occasion that he was going to kill him, and he threatened to kill the Officer in charge of this case, Detective Honiss.

[29] The Crown has introduced those matters to you and says they are particularly relevant to count two, because this is propensity evidence, it shows a tendency on the part of Mr Currie to behave in that way. I am going to come back to that shortly. I ask you to remember at this stage that you might find that relevant to count two. That is what the Crown is inviting you to do but, of course, it is the defence that Mr Currie had no such propensity whatsoever. He was under some pressure at depositions, because of the complainant’s evidence with which he did not agree and he just lost it. I will return to that shortly.

[32] She returned to the subject later in her summing-up:

[48] Now I want to turn back to the agreed facts pursuant to s 9, which I mentioned to you earlier. This has been introduced as propensity evidence by the Crown to establish the accused’s conduct at the depositions, which has been accepted, in particular that he threatened to kill the complainant and the Officer in charge of the case. As I said to you earlier, when I talked about count two, it is particularly relevant to that you might think. It is introduced because the prosecution want you to accept that the accused has a tendency to behave in that way, and that should assist you when you are considering whether or not you think primarily that he threatened to kill the complainant on 25 May last year. It is part of the agreed facts and you can accept that, although you may have thought that Mr Currie did resile from this in his evidence before you, and that is a matter you can consider when you are considering his credibility. This is just one matter to be taken into account as part of the whole of the evidence. It is just an addition to the mix that you will consider, bearing in mind that the defence has said to you that the accused has no such propensity.

[49] He has denied that he threatened to kill the complainant on 25 May and his explanation for this behaviour is simply that he lost it at the depositions, because of the complainant’s evidence. If you reject the Crown’s submission that the accused does have a propensity to act in this way you should ignore this evidence, Madam Foreperson, Members of the Jury, and you should guard against any feelings of prejudice against the accused, Mr Currie, because of it.

[33] In submitting that the Judge’s directions in relation to the propensity evidence were deficient, Mr Kaye relied on the seven-step direction approved by this Court in Stewart (Peter) v R.[1] The seven steps (excluding the Court’s elaboration of steps (2) and (3)) were: [2]

(1) State the purpose of the witness’s evidence.

(2) Explain what the propensity evidence is.

(3) Identify the factors relied upon by the Crown as establishing the relevant propensity by reference to the purpose of the evidence identified at step (1) and referring to any defence contention.

(4) Direct the jury that whether propensity exists is entirely a matter for them.

(5) Explain that, if propensity evidence is found to exist, it is to be used as circumstantial evidence to be considered with all other evidence when assessing the issues, including the reliability and credibility of the complainant.

(6) Explain that, if the jury does not accept that propensity is properly established, it should exclude the evidence from consideration.

(7) Warn the jury not to conclude that, because the accused has offended on a previous occasion, he must have done so in the manner alleged in the charge.

[34] Mr Kaye submitted the directions were deficient in:

1. Failing to adequately explain the purpose of the evidence as required by step (1).
2. Failing to provide a fair summary of Mr Currie’s explanation for his behaviour at the depositions hearing.

100. Failing to give the warning required by step (7).

[35] As this Court was at pains to point out in Stewart[3] and in E (CA727/09) v R,[4] any direction on propensity must be tailored to the facts of the case. The seven steps were necessary on the facts of Stewart but will not need to be slavishly followed in every case. E v R is an example of a case where it was not appropriate to do so.
[36] That said, some aspects of propensity evidence will invariably need to be addressed. The purpose for which the evidence has been called and how it can be used are of such central importance that some explanation will generally be essential. Where the evidence involves prior offending, a warning not to draw a direct inference of guilt will also be required.
[37] As to Mr Kaye’s first complaint, we think the Judge’s direction as to the purpose of the evidence, while compressed, was nonetheless sufficient. She made it clear that the jury could consider the admitted threat during the deposition hearing in assessing the credibility of Mr Downey’s assertion that Mr Currie had also threatened to kill him on 25 May. She explained well enough that the later admitted threat was a factor they were entitled to take into account in deciding whose version of events relating to 25 May they believed.
[38] As to Mr Kaye’s second complaint, we think the Judge dealt adequately[5] with the defence contention that what occurred at depositions was not evidence of propensity because Mr Currie had lost control.
[39] But there is substance in Mr Kaye’s third complaint. The Judge was remiss in failing to give an explicit warning not to infer guilt relating to count 2 simply because he admitted he had threatened to kill on a later occasion. In the concluding part of [49] there was an injunction to guard against “feelings of prejudice” but that was in the context of a rejection of the Crown’s position that the accused had a propensity to act in the way alleged. There could be no assurance that the jury would understand the warning to apply if they accepted that the incident at depositions was evidence of propensity.
[40] This Court has often emphasised the importance of warning a jury against the illegitimate use of evidence of an accused’s bad character or previous bad behaviour. Typical are the remarks of Elias CJ in R v Rongonui.[6] She said:[7]

I consider that the Judge erred in not warning the jury of the use to which it could legitimately put the evidence of the previous burglaries. Where an accused’s bad disposition or criminal propensity is disclosed by evidence which is properly admitted because it is sufficiently probative of an issue in the trial, it is necessary for the Judge to instruct the jury as to the proper use of such evidence. The jury should have been warned that it would be wrong to conclude from the evidence of the earlier burglaries that the accused must have gone to the flat intending to rob Pheap Im. In the present case no such warning was given. In my view the omission in the circumstances may well have occasioned a miscarriage of justice.

[41] By their verdicts on counts 1 and 3, the jury plainly rejected Mr Currie’s version of events and it may be thought unlikely that the propensity evidence would have affected the verdict on count 2. However, the charge of threatening to kill stood alone. The jury could have rejected Mr Currie’s account of the earlier violence and his explanation for the taking of the car but have been left in doubt whether the threats to kill were made. The direction on propensity evidence was deficient and the evidence itself was potent. We cannot exclude the reasonable possibility that a not guilty verdict would have been reached if a proper direction had been given. The misdirection gave rise to a miscarriage of justice.
[42] We conclude that the conviction on this count must be quashed. Ordinarily, there would need to be a new trial on this count. But we do not consider any adjustment is required to the overall sentence, for reasons to which we shall come. In those circumstances, it would be pointless to have a new trial on just this count. We direct that a verdict of acquittal on this count be entered.

Security

[43] Throughout the trial Mr Currie was handcuffed and flanked by security officers, although Mr Downs informed us that the prosecutor recalled that arrangements were made for Mr Currie to be brought into Court in a manner which would conceal the handcuffs from the jury’s view and that he was not handcuffed while giving evidence. Mr Kaye submitted (although not, he said, as a separate ground of appeal) that the Judge nevertheless should have warned the jury against drawing any inference adverse to Mr Currie from the obvious security presence.
[44] We find nothing in the point. Mr Kaye himself commented on the issue in his final address. In any event, we note that Mr Kaye did not invite the Judge to comment on the issue or otherwise draw attention to her omission to do so. If there is a concern that security arrangements might lead to prejudice which could be alleviated or dispelled by comment from the Judge, it is incumbent on trial counsel to raise it. As this Court said in R v Saggers:[8]

A complaint of this kind must be raised at the time, not held in reserve as an appeal point should the trial turn out badly from the defendant’s point of view.

See also the comments to similar effect in R v (Travis) Burns.[9]

Appeal against sentence

[45] The Judge identified a starting point of eight years imprisonment which she uplifted by two years to reflect “the number of charges and the aggravating features”. In settling on a sentence of ten years she also took into account the threatening to kill charges (arising out of what had happened at depositions) to which Mr Currie had pleaded guilty. There being no mitigating factors, the sentence she ultimately imposed was ten years on the counts of aggravated robbery and aggravated wounding and concurrent sentences of 12 months on the charges of threatening to kill and 18 months for possession of firearms and ammunition.
[46] Mr Kaye argued for a sentence of seven years. He relied on two sentencing decisions for aggravated robbery referred to by the Crown at sentence – R v Royal[10] and Wakefield v Police.[11] In both cases a private house was entered and the occupants threatened and assaulted with weapons before the assailants made off with property. In Royal a starting point of 11 years was upheld. In Wakefield Chisholm J held a starting point of ten years imprisonment was too high, reducing it to between seven and eight years.
[47] Mr Downs submitted that the sentence was “easily reached” when regard is had to the guideline judgment of R v Mako[12] and later decisions of this Court. He pointed to the following comments in Mako:[13]

Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of 7 years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.

This Court has subsequently held that starting points in the region of ten years imprisonment continue to operate in cases of aggravated robbery involving invasion of a private home – R v Fenton.[14]

[48] In Fenton a starting point of ten years imprisonment was upheld for the lead charge of aggravated burglary in a case which had many aggravating factors in common with the present. They included:

1. A premeditated attack;
2. Entry into private premises;

100. The use of weapons;

4. Violence resulting in moderate injury; and
5. The theft of property.

Among the features of the offending not present in this case were multiple victims, one of whom was a 14-year-old girl who was bound with tape.

[49] Royal also had aggravating features not present in the present case, among them the presence of multiple victims, including a 13-year-old who was bound and gagged. A shotgun and pistol were used to intimidate the victims and a knife found at the house was used to inflict cuts on one of the victims.
[50] In Wakefield no firearm was present; the assailants were armed with a baton and a knuckle-duster. Although there were threats to kill, the actual violence was confined to a single punch. The lesser starting point adopted by the Judge on appeal was plainly justified.
[51] In our view, the starting point of eight years adopted by Judge McAuslan is in keeping with the approach mandated by Mako and within the range indicated by sentences of this Court. The uplift of two years also appears justified. We understand from the Judge’s sentencing remarks that it was intended to reflect the criminality of all offending, including the two charges of threatening to kill arising out of what had occurred at depositions. It was also intended to reflect Mr Currie’s criminal history, which includes numerous convictions for dishonesty and violent offending. We further note that when the current offending occurred, Mr Currie had been released to home detention from a sentence of imprisonment.
[52] Even if the conviction for threatening to kill in the course of the 25 May offending is excluded, the Judge’s two year uplift was not inappropriate given the combination of factors just noted.

Result

[53] The appeal succeeds as it relates to the conviction on count 2. In all other respects, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington, for Respondent

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[1] Stewart (Peter) v R [2008] NZCA 429, [2010] 1 NZLR 197 at [40].
[2] At [30].
[3] At [40]-[41].
[4] E(CA727/09)v R [2010] NZCA 202 at [42].
[5] At [29] and [48].
[6] R v Rongonui [2000] 2 NZLR 385 (CA).
[7] At [16].
[8] R v Saggers [2008] NZCA 364 at [31].
[9] R v (Travis) Burns CA308/00, 17 October 2001 at [20].
[10] R v Royal [2009] NZCA 63.
[11] Wakefield v Police HC Christchurch CRI-2008-409-000169, 18 December 2008.
[12] R v Mako [2000] 2 NZLR 170 (CA).
[13] At [58].
[14] R v Fenton [2008] NZCA 379. See also Manuel v R [2010] NZCA 285.