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Rajgopaul v R [2011] NZCA 593 (30 November 2011)

Last Updated: 7 December 2011


IN THE COURT OF APPEAL OF NEW ZEALAND
CA279/2011
[2011] NZCA 593

BETWEEN NESHANDERAN RAJGOPAUL
Appellant

AND THE QUEEN
Respondent

Hearing: 10 November 2011

Court: Ellen France, Miller and Asher JJ

Counsel: R M Mansfield for Appellant
K Raftery for Respondent

Judgment: 30 November 2011 at 10 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

  1. The appeal against sentence is allowed to the extent that the minimum period of imprisonment is quashed and substituted by the previous total minimum period of imprisonment broken down in the following way:

____________________________________________________________________


REASONS OF THE COURT
(Given by Asher J)

Table of Contents

Para No
Introduction [1]
The attempted murder [2]
Mr Lomas [10]
The other counts [15]
After arrest [20]
The conviction appeal [26]
The sentence appeal [36]
The appellant’s submissions [41]
Discussion [42]
The minimum term [51]
Result [56]


Introduction

[1] Mr Rajgopaul appeals his conviction and sentence on a variety of charges including attempted murder following a jury trial presided over by Keane J. We commence by setting out the facts, drawing primarily from the Police summary of facts and Keane J’s sentencing notes.[1]

The attempted murder

[2] At approximately 4am in the early hours of 22 December 2009, Constables Cato and Snow were driving past an address in Papatoetoe. They observed an Audi motor vehicle parked down a driveway outside a unit with its emergency lights flashing. They drove down the driveway in their patrol car and proceeded to check the vehicle to see whether it had been subject to any interference. On checking the licence plates they established that the vehicle was stolen.
[3] While they were at the property a Mr Gavin Lomas came out from the unit and commenced speaking to the constables. Constable Cato noticed a sawn off shotgun that was partly covered in the back of the vehicle.
[4] Constable Snow asked Mr Lomas to get his driver’s licence and the key to the vehicle, and Mr Lomas went off to do so. There were in fact two other persons inside the unit, Mr Rajgopaul and a Mr Darrin Court. They had driven the vehicle to the property and they had been in the unit smoking methamphetamine. Messrs Rajgopaul and Court were both wearing yellow fluorescent vests in order to pass themselves off as workmen. Both Mr Rajgopaul and Mr Court, having become aware of the Police presence, slipped out of the unit through the ranchslider doors and jumped from the porch to the lawn in front of the unit. Mr Court left his yellow fluorescent vest inside so only Mr Rajgopaul was wearing a bright yellow vest with reflective strips. Mr Court was wearing a blue reflective t-shirt.
[5] Mr Lomas came back out to the constables with a plastic key. It would not open the vehicle. Constable Snow in the meantime became aware of the gun in the back. He moved with Mr Lomas back from the vehicle. The constables sought assistance. Then Constable Snow heard a noise nearby in the garden. He walked towards the noise, looking with his flash light. He spotted a person, whom he at the trial identified as Mr Rajgopaul, behind the trunk of a tree with overhanging branches in the left hand corner of the garden. That person was wearing a bright yellow vest with reflective strips.
[6] The constable said that he was from the Police and instructed Mr Rajgopaul to come out. Mr Rajgopaul agreed to but did not do so. He ducked back behind the tree and retreated towards the left hand corner. Constable Snow followed him and moved around the tree towards where he anticipated Mr Rajgopaul would be. He ended up, as it turned out, only a few metres away from Mr Rajgopaul.
[7] Constable Snow gave evidence that the person he identified at the trial as Mr Rajgopaul was at that stage facing away from him towards the fence as if intent on making his escape. Then, said Constable Snow, Mr Rajgopaul spun to his left to face him and dropped to one knee. He stretched out both his arms and locked his hands together. He began firing at him with a semi-automatic pistol.
[8] Constable Snow gave evidence that Mr Rajgopaul fired two quick shots in succession and then more. He recalls being hit to the left elbow, and moving to his right to find cover. As he was moving he was shot in both legs and fell to the ground. He turned off his torch so that he would not lead the shooter to his location. He appears to have lost consciousness for a short period. In the course of this he was hit a fourth time, in the region of his chest but fortunately the bullet became embedded in his laminated notebook in the front of his stab-proof vest. However, Constable Snow was not aware of this shot at the time. As he slipped in and out of consciousness Constable Snow saw Mr Rajgopaul run back down the fence line towards the unit.
[9] In all there were seven shots fired at Constable Snow. Four shots hit him and three went wide. He had a flesh wound to the right thigh, a wound in the left elbow area resulting in a fracture to the left elbow, and a wound to the left thigh resulting in a fracture to the left distal femur and a major laceration to the left femoral artery. The last injury was the most serious and potentially fatal. Constable Snow suffered major blood loss that required a number of blood transfusions. He underwent eight hours of surgery to stabilise his condition, followed by a further four hour operation. He became housebound, and continued to suffer intense pain and discomfort. His injuries have also had long term effects. He has not been able to fully resume his active life and only very slowly has he been able to return to work as a police officer.

Mr Lomas

[10] In the days before this incident Mr Rajgopaul considered that he had been drugged by a third party at Mr Lomas’ address and some of his methamphetamine and money had been stolen. He suspected Mr Lomas. He also suspected another man and woman who had been there on that earlier night. The man was expected to come to the unit where Mr Lomas was early on the morning on 22 December to sort matters out. Mr Rajgopaul had a variety of firearms with him. While Mr Rajgopaul had been waiting he had smoked methamphetamine. It was at that point the Police had arrived.
[11] Following the shooting of Constable Snow, Mr Lomas was still in the garden area hiding near the front of the garage. He saw Mr Rajgopaul approaching him and Mr Rajgopaul appeared to be holding up his hands as if he was going to shoot. He called out to Mr Rajgopaul that he was not the Police. Mr Rajgopaul then shot at him. The bullet appears to have hit a post right next to where Mr Lomas was standing. Had it hit him he would have suffered a wound to his lower abdomen. Mr Lomas reported that he did suffer a slight wound to the arm, but it is not clear how this came about. Following the shot Mr Lomas ran away.
[12] When the pistol was found discarded in a nearby property there were two rounds in it. One was jammed in the breech. It cannot be established whether Mr Rajgopaul attempted to shoot at Mr Lomas again. What is clear is that because it jammed there was no opportunity to fire any further shots.
[13] Mr Rajgopaul then went over the back fence and endeavoured to hide in nearby properties. He was seen and a Police dog was sent to fetch him out. He was arrested. In his back pocket he was carrying a rifle magazine filled with bullets. Later tests were to show that he had gunshot residue on his hands.
[14] On arrest Mr Rajgopaul told the arresting officer that he had done nothing wrong, and that the man they were looking for was still at large. In the video interview later that morning he again denied any part in the two shootings and said that he was one of five persons on the property when the Police arrived and one of four who decamped. He claimed to be wearing blue jeans and a black singlet.

The other counts

[15] In addition to guilty verdicts on these two counts, the jury entered guilty verdicts on counts relating to a number of earlier events.
[16] Mr Rajgopaul was convicted on two counts of assault with a weapon. The victim of the first was a Mr Phillip Kingi. Between 1 November 2009 and 22 December 2009 Mr Kingi visited an address at which Mr Rajgopaul was present. Mr Kingi and Mr Rajgopaul got into an argument and this culminated in them both agreeing to take their argument outside to settle it. Mr Kingi walked outside removing his shirt and watch believing that he was about to have a fist fight with Mr Rajgopaul. Mr Rajgopaul followed but remained in the doorway of the address. He verbally abused Mr Kingi. Mr Kingi did not back down. Mr Rajgopaul then produced a large heavy silver barrelled firearm and pointed it with two hands at Mr Kingi’s head. An associate grabbed the barrel of the firearm and pushed it upwards and eventually defused the situation.
[17] The victim of the second was a Ms Amanda Riley. Between 1 November 2009 and 22 December 2009 Ms Riley was at an address in the presence of Mr Rajgopaul. An argument developed between her and Mr Rajgopaul. During the argument Ms Riley verbally abused Mr Rajgopaul calling him names. As she went to leave Mr Rajgopaul warned her not to come back to the address. About a week later Ms Riley returned to the address to visit a friend. Mr Rajgopaul answered the door and produced a pistol. This was described by Ms Riley as being smaller than a Police Glock pistol. He pointed the pistol at her and said “I thought I told you to fuck off”. Ms Riley put her hands in the air and retreated and left.
[18] There was also a charge of receiving relating to the Audi motor vehicle. The owner of this 2006 vehicle had parked it on the side of the road in Greenlane, Auckland. The vehicle was worth approximately $30,000. It was stolen and the owner reported this to the Police. On or about 21 December 2009 Mr Rajgopaul was driving the stolen vehicle. He placed inside it four firearms, a large amount of ammunition and a quantity of methamphetamine. The firearms were:
[19] Mr Rajgopaul drove around Auckland and picked up Mr Court. Mr Court then drove the vehicle with Mr Rajgopaul as the sole passenger. This was the position when they drove to Mr Lomas’ address on 22 December 2009. Mr Rajgopaul was charged also with possession of the firearms and possession of 5.3 grams of methamphetamine, which had been found in the unit, for supply.

After arrest

[20] When Mr Rajgopaul gave evidence at the trial he accepted that there were three people present at the unit, not five, and that it was he and Mr Court who decamped, leaving Mr Lomas with the Police. He accepted that he was wearing a white shirt and a yellow fluorescent jacket. He had little choice as he was identified as wearing those items shortly before at a service station. Mr Rajgopaul identified Mr Court as the actual offender. He admitted standing in the left hand corner of the garden just metres away from Constable Snow when the shots were fired. However, he said that Mr Court was already in the corner and that he was the one who was armed. Mr Court pushed him down and fired over the top of him. He blamed Mr Court for shooting the constable. It was his case at the trial that Constable Snow, although he purported to identify Mr Rajgopaul as the shooter, must have confused him with Mr Court.
[21] Mr Rajgopaul also claimed that the semi-automatic pistol and a rifle found in the house belonged to Mr Court. He denied knowing that the Audi motor vehicle was converted. He denied that the methamphetamine found on the property was his and attributed that to Mr Court and Mr Lomas.
[22] Following the trial, Mr Rajgopaul was found guilty on the following charges:
[23] The jury found him not guilty on a fourth charge of unlawful possession of a firearm.
[24] Mr Rajgopaul does not appeal in respect of the convictions for assault with a weapon against the victims Mr Kingi and Ms Riley, but appeals against the convictions for attempted murder, discharging a firearm with intent to cause grievous bodily harm, possession of methamphetamine with intent to supply, unlawful possession of a firearm (x 3) and receiving property.
[25] Keane J sentenced Mr Rajgopaul to 18 years’ imprisonment with a minimum non-parole period of 10 years for these offences.

The conviction appeal

[26] The submissions in support of the appeal asserted that Keane J erred in his summing up to the jury in that he failed to adequately address the defence case and the evidence relied on, in particular the expert evidence.[2]
[27] Mr Mansfield’s submissions focussed on the Judge’s failure to fairly put two aspects of the identification evidence to the jury.
[28] The first aspect was Constable Snow’s identification of Mr Rajgopaul. The defence called evidence from Dr Joseph Sakdalan, a clinical psychologist. He gave general evidence about memory and how memories can be reconstructed. He identified some factors which may distort memory, for example, limited visibility, events occurring rapidly, and information obtained from other sources about the event subsequently. This provided a theoretical explanation for the defence submissions that Constable Snow might be confused and so mistaken. It was submitted in closing for Mr Rajgopaul, that Constable Snow, having seen Mr Rajgopaul first, and then having been shot at by a person in the position he expected Mr Rajgopaul to be in, wrongly assumed that the person shooting was the person he was expecting to see, rather than identifying the actual person who was Mr Court.
[29] In his summing up Keane J referred twice to Dr Sakdalan by name. Although he did not go into detail in those particular parts of the summing up, in three other parts[3] he clearly explained the defence theory of the transposition by Constable Snow of Mr Court’s identity for that of Mr Rajgopaul. That explanation referred the jury to the substance of Dr Sakdalan’s testimony in a fair way. We also bear in mind that in the course of this five week trial, the defence evidence including that of Dr Sakdalan, had been given the week prior and would have been easily recalled by the jury, whereas the Crown expert evidence had been weeks earlier. Finally, it is relevant that Keane J directed the jury about the dangers of identification evidence. Mr Mansfield accepts those directions were entirely proper. We have no doubt that the defence case on this point was fairly put by the Judge and that there was not unfair emphasis on the case put forward by the Crown.
[30] The second aspect was the evidence of the gunshot residue that the Crown’s expert, Mr Walsh, identified as being on Mr Rajgopaul’s hands. Under cross-examination Mr Walsh accepted that if Mr Rajgopaul had been in close proximity to someone else who was actually firing the shots, there was a very strong possibility that the gunshot residue would be deposited on him even though he was not the shooter. Therefore the finding of gunshot residue on Mr Rajgopaul’s hands was inconclusive. He also accepted that it was possible that the gunshot residue on Mr Rajgopaul’s hands might be on him from the handling of guns earlier in the night.
[31] In relation to the gunshot residue evidence, the possibility that the gunshot residue on Mr Rajgopaul’s hands could have been a consequence of Mr Court shooting in close proximity to him was referred to by the Judge on at least three separate occasions[4] through the course of his summing up. The Judge expressly recorded the defence case that this evidence was neutral.[5] A balanced summary of both the Crown and defence theories on this issue was put to the jury, and the jury could not have helped but be aware of the defence position and Mr Walsh’s concessions. It was open to the jury to conclude that at the time of the shooting Mr Rajgopaul and Mr Court were not in close proximity. Moreover, it had been put to Mr Rajgopaul when he gave evidence that if he had been pushed down by Mr Court who was firing over the top of him, his hands would have been on the ground. The Crown submitted in closing that in those circumstances Mr Rajgopaul’s hands would not have got gunshot residue on them.
[32] We therefore do not accept the submission that the Judge did not fairly put the defence case on these two aspects of the identification evidence.
[33] There is, finally, some criticism of the way in which the Judge summed up in relation to Mr Lomas’ evidence because Mr Lomas did not initially blame Mr Rajgopaul. However, the Judge reminded the jury of Mr Lomas’ lack of initial identification of Mr Rajgopaul at the first interview. We can see no basis for any criticism.
[34] We cannot accept Mr Mansfield’s submission that the treatment of these issues or any aspect of the defence case was perfunctory or inadequate. The fact was that the Crown case was strong. Mr Rajgopaul was positively identified as the shooter by Constable Snow and Mr Court. The gunshot residue implicated Mr Rajgopaul unless his hands were in close proximity to Mr Court when the shots were fired. This was far from clear on the evidence. Mr Lomas in his first interview stated that he could not identify who shot at him, but in his second interview and thereafter identified Mr Rajgopaul as the shooter.
[35] For the shooter not to be Mr Rajgopaul, Constable Snow had to be wrong in his identification, Messrs Court and Lomas had to be wrong in their identification and Mr Rajgopaul had to be in close proximity to the shooter with his hands near the gun when the shots were fired. The jury would also have had to reject the evidence that the shooter was wearing a bright yellow vest with reflective strips, and that only Mr Rajgopaul was wearing such a jacket during the period of the shooting. The defence could do little to ameliorate the combined weight of these factors. Nevertheless, the Judge presented the defence case in a manner that was balanced and fair. The conviction appeal cannot succeed.

The sentence appeal

[36] Keane J found that the attempted murder of Constable Snow lay “among the most serious offences for which the maximum has been devised”. He referred to other cases involving the attempted murder of police officers.[6] He accepted that there were distinguishing elements in those cases, but noted the particularly severe injuries suffered by Constable Snow. After referring to features of the case of R v Simiona[7] that had been relied on by Mr Rajgopaul’s counsel he concluded:[8]

That is as much as I am able to say by way of comparison. That is a decision taken on sentence by a Judge whose jurisdiction is concurrent with mine and I must make my own decision in this case.

[37] On the discharge of the firearm charge concerning Mr Lomas he noted that Mr Rajgopaul had a choice and chose to shoot at him and that Mr Lomas was lucky to have escaped serious or even fatal injury. He cited comparable authority[9] and noted that the shooting was at close range and that he could not exclude the possibility that Mr Rajgopaul might have fired more if the gun had not jammed. He sentenced him to four years’ imprisonment cumulatively on that charge.
[38] On the remaining charges he noted that the possession of methamphetamine for supply charge was the most serious, and that a cumulative starting point of three to four years’ imprisonment would ordinarily be appropriate. However in the end, having regard to the principle of totality, he imposed a three year concurrent sentence. In relation to the two assaults with weapons charges, the unlawful possession of firearms charges and the receiving of property charge, he viewed these four counts as less serious and concurrent sentences of 18 months’ imprisonment were imposed in each case.
[39] Therefore while the effective sentence was 18 years’ imprisonment, there were five further concurrent sentences, one of three years’ imprisonment and the others of 18 months each. The total period of concurrent sentences was nine years, but there was no specific uplift to the starting point of 18 years for that offending.
[40] The starting point was ultimately the end sentence as there were no aggravating or mitigating factors relating to Mr Rajgopaul personally that had to be taken into account.

The appellant’s submissions

[41] The main focus of Mr Mansfield’s criticism of the sentencing was on the 14 years’ imprisonment maximum penalty imposed in relation to the attempted murder count. Mr Mansfield emphasised that the sentences imposed in relation to the two cases relied upon by the Judge[10] involved sentences where the inherent culpability of similar offending warranted sentences of less than the maximum, of 12 years’ imprisonment and 12 and a half years’ imprisonment respectively. It was also submitted that a concurrent sentence for the charge of discharging a firearm at Mr Lomas was appropriate given that the shooting of Mr Lomas occurred almost immediately after and was very similar to the shooting of Constable Snow. He submitted that the cumulative sentence was an error.

Discussion

[42] Section 8(c) of the Sentencing Act 2002 provides that in sentencing an offender the Court:

must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate;

[43] The deliberate shooting by Mr Rajgopaul of a uniformed police officer on duty, with seven shots being fired and shots being directed at the torso, places the culpability of this offending in the most serious category. Of course it was not necessarily the most serious case imaginable. For instance, there was no significant premeditation or particular cruelty. But it will seldom, if ever, be the case that the culpability for particular offending can be categorised as the absolute worst. The deliberate shooting to kill of a police officer and the repeated firings were most grave aggravating factors. The injuries were very severe with long term effects. The Judge was correct to proceed on the basis that the guidance he could receive from other cases, while relevant, could not dictate the end sentence that he considered to be appropriate. He had to make his own decision and the imposition of the maximum of 14 years was, in the circumstances, a result that was open to him.
[44] Like the Judge, we see no point in a fine comparison of this sentence to other sentences relating to the attempted murder of police officers. A one and a half to two year range in those sentences can be seen as within the boundaries of legitimate judicial discretion. Moreover, while the 14 years can be seen as severe in isolation, it has to be considered in conjunction with all the factors that led to the end sentence of 18 years’ imprisonment, and the totality principle.
[45] The other component of the 18 year end sentence was the cumulative sentence of four years in relation to the shooting at Mr Lomas. Section 84 of the Sentencing Act provides that cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they form part of a connected series of events.[11] Section 84 does not set out a rigid framework, but provides guidance for the sentencing process. The boundary between what is and is not “different in kind” is incapable of precise delineation.
[46] It is not necessary to analyse further the differences between the shootings, as the overriding factor is the need for the sentence to reflect the totality of the offending.[12] In R v Xie[13] this Court emphasised the central principle for sentencing for multiple offending, that the total sentence must represent the overall criminality of the offending and the offender. It was stated:[14]

In this case concurrent sentencing would have been appropriate, provided that concurrent sentencing could lead to an appropriate total sentence. But it could not, at least in Mr Xie’s case. In circumstances where the total sentence appropriate for the totality of the offending exceeds the maximum penalty for any one offence, cumulative sentencing must be used. This is a circumstance where concurrent sentencing is not appropriate because it prevents the implementation of the fundamental tenets of sentencing for multiple offending (see R v Mackwood (Court of Appeal, CA 197/95, 28 March 1996) at p 2).

[47] The Judge had already imposed the maximum sentence on the attempted murder count, and there was no headroom left in that count for further additions to reflect totality. So the Judge had to reflect totality in a cumulative sentence on another charge, or charges.
[48] We have no doubt that when the Judge imposed a cumulative sentence of four years’ imprisonment on the discharge of a firearms charge in addition to the 14 years’ imprisonment imposed on the attempted murder, he was taking this into account and applying the totality principle. Mr Rajgopaul had to be sentenced on the remaining counts in addition to the 14 years’ imprisonment for the attempted murder. The Judge had to consider six discrete and serious criminal acts:
[49] The Judge chose to reach the total sentence by imposing a single additional cumulative sentence of four years on the charge of discharging a firearm with intent to cause grievous bodily harm. Theoretically, without the imposition of concurrent sentences and a consideration of the totality of the offending, the total penalty had cumulative sentences been imposed would have been 27 years’ imprisonment and not the 18 years imposed.[15] The counts relating to the balance of the offending in addition to those relating to the shooting at Constable Snow and Mr Lomas were different in kind and were serious and demanded recognition in the sentencing process. The Judge must have taken all that additional culpability into account by adding on the four years to reach the end sentence of 18 years’ imprisonment. This was nine years less than the end sentence if all the sentences had been treated as cumulative.
[50] When that 18 year end starting point is considered in relation to the totality of the offending involving the five discrete and serious criminal acts in addition to the attempted murder, the end sentence was within range. That end starting point could have been reached through alternative means by the Judge, for instance, imposing a 13 year starting point for attempted murder with a five year uplift to take into account the totality of the other offending.

The minimum term

[51] The Judge fixed a minimum period of 10 years’ imprisonment. Mr Mansfield accepted that a minimum period of imprisonment was appropriate, but given Mr Rajgopaul’s limited previous history it was submitted that a minimum period of more than one half was manifestly excessive.
[52] As Mr Raftery for the Crown pointed out, if one of the bullets fired at Constable Snow had caused his death, Mr Rajgopaul was likely to have been sentenced to a minimum period of 17 years’ imprisonment, with further uplifts to that minimum period arising from the further offending. Subject to what we say below, in the round a minimum period of 10 years’ imprisonment, or approximately 56 per cent, was warranted given the need to denounce those who set out to kill police officers and use guns as weapons. There was a need to deter Mr Rajgopaul and others from further offending. Given the shocking anger and violence shown by Mr Rajgopaul there was also a need to protect the community from him.[16]
[53] The Judge did not specify the particular sentence to which the minimum term related. Section 86(1) provides that when a determinate sentence is imposed the Court may impose a minimum period of imprisonment in relation to “that particular sentence”. There was no jurisdiction, therefore, to impose a minimum period of imprisonment for all the offences, rather than a particular offence.[17] A 10 year minimum term was more than the two-thirds available for an end sentence of 14 years’ imprisonment.[18]
[54] This is a technical point only referred to by the Crown to inform the Court of the issue, and in fact not pursued by Mr Mansfield in his submissions. It is rectified by the minimum term, which for the reasons given we consider appropriate, being allocated to the two lead offences on which Mr Rajgopaul was sentenced of attempted murder and discharging a firearm with intent to cause grievous bodily harm. The appropriate apportionment is an eight year minimum term on the attempted murder and a two year minimum term on the discharging a firearm with intent to cause grievous bodily harm. Section 84(4) of the Parole Act 2002 requires that those two minimum periods be added together to reach the correct non-parole period for the sentence imposed.[19] Accordingly the non-parole periods of eight years and two years will be added together to reach a total non-parole period of 10 years’ imprisonment.
[55] It is necessary to allow the appeal so that the minimum periods of imprisonment apply to each particular relevant sentence. This is a change in form only, and the total of the minimum period of imprisonment imposed cumulatively is the same as the 10 years originally imposed.

Result

[56] The appeal against conviction is dismissed.
[57] The appeal against sentence is allowed to the extent that the minimum period of imprisonment is quashed and substituted by the previous total minimum period of imprisonment broken down in the following way:

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Rajgopaul HC Auckland CRI-2009-092-20927, 20 April 2011.

[2] The appellant formally abandoned a ground of appeal in the notice of appeal concerning the elements of each count.
[3] See Keane J’s summing up at [13], [101]–[105] and [127].

[4] See Keane J’s summing up at [131] and [158]–[160], and see also [124], [128] and [129] of the summing up.
[5] At [161] of the summing up.

[6] R v Murray (1997) 14 CRNZ 524 (CA) and R v Simiona HC Wanganui CRI-2010-083-378, 7 April 2011.
[7] R v Simiona HC Wanganui CRI-2010-083-378, 7 April 2011.
[8] At [46].
[9] R v Katene [2010] NZCA 394 at [20].

[10] R v Murray (1997) 14 CRNZ 524 (CA); and R v Simiona HC Wanganui CRI-2010-083-378, 7 April 2011.
[11] Sentencing Act 2002, s 84(1).
[12] Sentencing Act 2002, s 85.
[13] R v Xie [2007] 2 NZLR 240 (CA) at [19].
[14] At [19].
[15] At [39].
[16] Sentencing Act 2002, s 86(2)(d).
[17] R v Kite [2007] NZCA 385 at [12] and R v Clayton [2008] NZCA 348 at [12].
[18] Sentencing Act 2002, s 86(4).
[19] Van Wakeren v R [2011] NZCA 503 at [82]–[87].

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