Briggs v R [2020] NZCA 453 (25 September 2020)

Last Updated: 29 September 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA204/2019 [2020] NZCA 453

	BETWEEN	ARTHUR BRIGGS Appellant
	AND	THE QUEEN Respondent

Hearing:	23 July 2020
Court:	Clifford, Woolford and Dunningham JJ
Counsel:	S J Gray for the Appellant K S Grau for the Respondent
Judgment:	25 September 2020 at 10.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time is granted.
2. The application to adduce fresh evidence is granted.
2. The appeal is allowed to the extent that the minimum period of imprisonment of seven years is quashed.

100. The sentence of ten years and six months’ imprisonment is confirmed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

• [1] This is an appeal against sentence by Arthur Briggs on the basis that the sentence imposed is manifestly excessive. Mr Briggs was convicted in the District Court at Wellington of one charge of causing grievous bodily harm with intent to cause grievous bodily harm,^[1] three charges of injuring with intent to injure,^[2] two charges of assault with a weapon^[3] and five charges of assault.^[4] On 10 May 2016, he was sentenced to 10 years and six months’ imprisonment with a minimum period of imprisonment (MPI) of seven years.^[5] He filed a notice of appeal three years later on 9 May 2019. Accordingly, Mr Briggs seeks leave from this Court to file the notice of appeal out of time.

Factual background

• [2] Mr Briggs was sentenced on a number of charges arising out of two incidents at the Rimutaka Prison. The first, more serious, incident occurred on 1 June 2012. The incident gave rise to a charge of causing grievous bodily harm with intent to cause grievous bodily harm, three charges of injuring with intent to injure, two charges of assault with a weapon and four charges of assault. There were six victims: one a fellow inmate and the remaining five all Corrections officers. At the time of the incident, Mr Briggs was serving a sentence of nine years’ imprisonment for being party to the wounding of another inmate at another prison in March 2008.
• [3] That incident involved Mr Briggs and three others going into the cell of a Mr Matenga, a fellow inmate who had transferred to Rimutaka Prison in late May 2012. A fifth inmate stood at the door as a lookout. Mr Briggs and his fellow inmates punched Mr Matenga heavily in the face, held him down in a headlock and repeatedly punched and kicked him. For context, there had been rumours that Mr Matenga had “narked” on fellow prisoners about drug use. The lookout then warned Mr Briggs of the approaching Corrections officers.
• [4] Corrections Officer Dixon approached Mr Briggs in the cell. Mr Briggs then kicked the officer to the face and head, causing him to fall to the ground, where Mr Briggs kicked him twice, rendering the officer unconscious. Mr Briggs punched a second Corrections officer, who had come to assist, in the face. Mr Briggs and another inmate then repeatedly punched and kicked a third Corrections officer, who was on the ground and rendered incapable of resistance by a jersey pulled over his head. Soon after, Corrections Officer Dixon regained consciousness and stumbled from the cell. Mr Briggs then punched him heavily to the head. The officer was knocked unconscious again, leading to a very significant injury. Mr Briggs then punched a fourth Corrections officer in the head, swung a plastic meal tray at him and then threw the tray. This was followed by a glancing punch at that Corrections officer. When that Corrections officer attempted to restrain Mr Briggs, he head-butted the officer twice.
• [5] Of the five victims, Corrections Officer Dixon suffered the most serious injuries. These included two skull fractures, brain swelling, a fractured left eye socket and a badly damaged right eye. The officer has been permanently affected and he continues to display well-known physical and mental side effects of a significant brain injury. He will likely never be able to work again as an active Corrections officer. The other Corrections officers all received lesser injuries, including bruising, swelling and associated tenderness.
• [6] The second incident occurred in 2014, two years after the first incident. This incident also involved an assault. It occurred while Mr Briggs was awaiting trial for the charges arising from the first incident. On 25 September 2014, Mr Briggs punched another Corrections officer, causing a mild concussion, when Mr Briggs had been told to stop fighting with another inmate.

Sentencing in the District Court

• [7] On 10 May 2016, Mr Briggs was sentenced by Judge Davidson of the District Court at Wellington. The Judge started by recounting the factual and procedural history.^[6] The Judge observed that Mr Briggs sought and rejected a sentence indication in mid-2013. He then pleaded guilty to some charges in July 2013 and again some more in May 2014. Mr Briggs then applied to set aside his guilty pleas — he was largely unsuccessful. He was then tried before Judge Davidson and a jury. He was found guilty of one charge, but acquitted of the other. The Judge noted that Mr Briggs had been before the Court in respect of these charges for nearly four years. The Judge considered that this was of some significance as over the last six months Mr Briggs had demonstrated an improved attitude and insight into his offending.
• [8] The Judge then decided that the District Court should retain jurisdiction as opposed to transferring sentencing to the High Court to consider a sentence of preventive detention.^[7] In sentencing Mr Briggs, the Judge adopted a starting point of 10 years’ imprisonment for the charge of causing grievous bodily harm to Corrections Officer Dixon. There was then an uplift of three years to reflect the other offending and Mr Briggs’ previous convictions. Accordingly, the Judge adopted an overall starting point of 13 years’ imprisonment.^[8]
• [9] As to aggravating factors, the Judge noted the following.^[9] First, the attack on Mr Matenga was premeditated. While Mr Briggs was not necessarily the organiser, he was clearly a key player. Secondly, while the offending against the Corrections officers may not have been specifically premeditated, it was an inevitable result of attacking another prisoner. Thirdly, two of the victims, namely Corrections Officer Dixon and Mr Matenga, suffered serious injuries. In particular, Corrections Officer Dixon’s injuries were life-threatening and life-changing. Fourthly, the blows were directed to the head and upper body. Fifthly, the attack was conducted by a group; the Judge described it as a “concerted, almost pack-like attack”.^[10] Sixthly, Mr Briggs’ previous convictions and the fact that the offending occurred while he was subject to a sentence of imprisonment were also aggravating factors. The Judge referred in particular to a previous conviction for wounding in March 2008 when Mr Briggs was an inmate at Ngawha Prison. There, Mr Briggs took part in a concerted and sustained group beating of another inmate, who suffered serious injuries as a result. He was found guilty of being a party to the wounding and sentenced to nine years’ imprisonment.^[11] Mr Briggs has nearly 50 other convictions.
• [10] As to mitigating factors, the Judge identified just two.^[12] First, there were the guilty pleas which Mr Briggs entered in a piecemeal fashion. The Judge considered that a 15 per cent discount was appropriate and realistic. Secondly, the recent progress that Mr Briggs had made, including developments in his insight into his offending and some expression of remorse, warranted some discount. A discount of six months was therefore allowed to reflect the encouraging signs that Mr Briggs was willing to undergo treatment as well as his inkling of remorse. Together with a 15 per cent discount was given for his guilty pleas, that led to an end sentence of 10 and a half years’ imprisonment on the lead charge of causing grievous bodily harm.^[13]
• [11] The Judge imposed a sentence of four years’ imprisonment on the three charges of injuring with intent to injure; three and a half years’ imprisonment on the two charges of assault with a weapon; and one year’s imprisonment on the five charges of assault.^[14] All sentences were to be served concurrently.
• [12] Finally, Judge Davidson imposed a MPI of seven years for reasons of deterrence, denunciation and accountability.^[15]

Application for an extension of time in which to appeal

• [13] The June 2012 offending was charged on indictment and consequently the former appeal provisions under Crimes Act 1961 apply.^[16] Section 388(1) of the Crimes Act provided that a person convicted “shall give notice of appeal ... within 28 days after the date of conviction or (if the convicted person is not sentenced on the date of conviction) at any time after the conviction, but not later than 28 days after the date of sentence”. The sentence appealed against is dated 10 May 2016. The notice of appeal is dated 9 May 2019, almost exactly three years after the date of sentencing. The appeal is therefore out of time. Section 388(2) provided, however, that “[t]he time within which notice of appeal ... may be given may be extended at any time by the Court of Appeal”.
• [14] This Court has previously observed that the “touchstone” for a successful application is that it must be in the interests of justice, taking into account all relevant circumstances, to grant an extension.^[17] Applications for extensions of time can essentially be reduced to two questions.^[18] First, why was the appeal filed late? Secondly, what merit, if any, does the prospective appeal appear to have?
• [15] The onus is on the appellant to provide sufficient information to satisfy the Court that granting leave is in the interests of justice.^[19] Applications for leave to appeal out of time involve a balancing test in which relevant considerations include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, and the practical utility of any remedy sought.^[20] Significantly, the Court will only entertain an appeal that is many years out of time in exceptional circumstances.^[21] A long delay can be a major factor weighing against leave, and, where unexplained, can be decisive.^[22]

Analysis

Why was the appeal filed late?

• [16] Ms Gray, for the appellant, submits that Mr Briggs was unable to complete the requisite paperwork for filing an appeal due to being relocated. Mr Briggs says that shortly after his sentencing on 10 May 2016, he instructed his lawyer at the time to file an appeal. However, he was transferred to several different prisons during the period for filing an appeal. He was therefore unable to file an appeal within the requisite time period. In reply, the Crown submits that this explanation is inadequate, particularly as Mr Briggs was aware from the start of the time period for bringing an appeal. It observes that this Court has previously described a delay of one year and 10 months as being a significant one.^[23]
• [17] There has been around a three-year delay between the sentence being imposed and the filing of the appeal in this case. That is a significant delay. As we have noted above, and as previously observed by this Court, an appeal that is many years out of time will be entertained only in exceptional circumstances.^[24] Mr Briggs’ relocation on its own does not provide an adequate explanation for the three years’ delay. This is a factor weighing heavily against granting an extension of time in which to appeal.
• [18] In the meantime, Mr Briggs has been sentenced to a further cumulative sentence of three years and 10 months’ imprisonment imposed on 3 November 2017 for offending committed on 19 October 2016, which, again, involved a group attack by inmates on Corrections officers.^[25]
• [19] Mr Briggs’ sentence end date is now 9 September 2030. He is not eligible for parole until 8 March 2027. The calculations are as follows:

Sentence commencement date	Length of sentence	Parole eligibility date	Sentence end date
14 August 2009	Nine years	25 December 2010	22 December 2016
10 May 2016	10 years and six months (seven year MPI)	9 May 2023	9 November 2026
9 November 2026	Three years and 10 months (cumulative on 10 year and six months, subject to second strike, must serve full sentence)	8 March 2027	9 September 2030

• [20] This compounds the difficulty in dealing with appeals against sentence years after imposition. In the present case, Mr Briggs received a totality discount of four months when sentenced on 3 November 2017 on the basis that he was already serving a sentence of 10 years and six months’ imprisonment.

What merit, if any, does the prospective appeal appear to have?

• [21] Ms Gray submits that the sentence was manifestly excessive. In particular, she submits that the sentencing Judge:

(a) made an error in principle in the application of R v Taueki,^[26] in that he took into account matters which were not relevant in assessing the starting point for the lead charge of causing grievous bodily harm;

(b) did not give sufficient consideration to Mr Briggs’ personal mitigating circumstances because of the lack of a report detailing these matters; and

(c) erred in imposing an MPI of two-thirds.

• [22] First, Ms Gray submits that the Judge failed to identify the Taueki band and erred in assessing the aggravating factors of the offending, particularly in failing to assess the extent to which the factors were present or overlapped. The sentencing Judge identified a number of aggravating factors, as summarised at [9] above. These factors correlate with the factors outline[27]in Taueki.²⁷ The Judge settled on a starting point of 10 years’ imprisonment. That places the sentence at the top of band two (five to 10 years) to the bottom of band three (nine t[28]14 years).²⁸
• [23] This Court has previously explained that band two will be appropriate for grievous bodily harm offending which features two or three aggravating factors. Band three is appropriate for grievous bodily harm offending which has three or more aggravating factors and the combination of those factors is particularly grave.^[29] By way of example, the Court observed that where the offending is an “assault on a police officer by multiple attackers with weapons [leading] to a life-threatening injury, a starting point at or near the 14-year maximum may be called for”.^[30] There are some similarities between that example and the present case: there was an attack on Corrections officers, there were multiple attackers, the attack lead to a life-threatening injury for Corrections Officer Dixon, and there was an attack to the head, itself an aggravating factor which may be considered the equivalent of the use of a weapon. There were, accordingly, at least three of the aggravating factors identified in Taueki.
• [24] Significantly, the focus in sentence appeals is on whether the sentence imposed is within the range rather than the process by which the sentence was reached.^[31] In the circumstances, a starting point of 10 years’ imprisonment was justified whether the offending fell in band two or band three.
• [25] Secondly, Ms Gray also submits that there was insufficient consideration of Mr Briggs’ personal mitigating circumstances due to the lack of a report on these matters. She notes, in particular, Mr Briggs’ personal background, lack of rehabilitation and mental health needs. To that end, Ms Gray seeks leave to adduce fresh evidence by way of a psychiatric report by Dr James Cavney.
• [26] The Court may receive new evidence on appeal if it thinks it is necessary or expedient in the interests of justice.^[32] An appellant must demonstrate that the new evidence is sufficiently fresh and sufficiently credible.^[33] Evidence which could, with reasonable diligence, have been called at trial will not qualify as sufficiently fresh. The overriding criterion is what course will best serve the interests of justice.
• [27] Dr Cavney is a consultant psychiatrist who was instructed by counsel for Mr Briggs to prepare a psychiatric report for his appeal against sentence. Dr Cavney acknowledges that at the time of sentencing the Judge did have reports from a psychiatrist, Dr Krishna Pillai, and a psychologist, Ms Sabine Visser, but these reports were, in essence, risk assessments and provided similar conclusions that Mr Briggs was at medium to high risk of future violent offending. They did not, however, primarily consider factors which may have been considered as mitigating at the time of offending.
• [28] In Dr Cavney’s opinion, it is probable that Mr Briggs would meet the criteria for post-traumatic stress disorder and this was significantly related to the assaults on the Corrections officers at the time of offending. Dr Cavney also refers to the lack of opportunity to engage in rehabilitative programmes. He comments it is possible that, had Mr Briggs engaged in such interventions, that could have reduced the likelihood of further institutional offending.
• [29] Dr Cavney concludes:

In my clinical opinion, Mr Briggs had a number of mental health issues (including depression and symptoms of posttraumatic stress disorder) that contributed to his index offending. It is also my opinion that his transfer to another unit in the weeks before that was a significant if not critical contributing factor that could have been better managed by the Department of Corrections.

The nexus between depression and posttraumatic stress disorder and criminal offending has precedent, in my experience of other cases, to be considered by the Court as a point of mitigation that has invited sentence discounting as determined by the presiding Judge.

• [30] Mr Briggs has also filed an affidavit himself dated 14 February 2020, in which he confirms everything he told Dr Cavney is true and correct to the best of his knowledge. He states that since being in custody from October 2007 he has not received any real rehabilitation from the Department of Corrections.
• [31] He acknowledged that it is his offending in prison, being assaults on other inmates or Corrections officers, that has kept him in high or maximum security. He refers to a “siege mentality” in prison whereby it is either assault or be assaulted; not necessarily in that moment, but at some time in the future.
• [32] He says his offending has become worse in prison. He has received two strikes in prison. He came into prison as a young man and his sentence has just become longer and longer. He concludes:

Since being in jail, I have had no rehabilitation. I have not learned any new skills. I have had no counselling. I have spent most of my time locked up in a 4 by 6 concrete cell. I eat alone. I have mainly been housed in wings with gang members. Only now do I have my first job in prison. I have never had one before now. I feel very sad at times and I have no one to talk to about deep things. All my calls are recorded except to my lawyer.

• [33] In response, the Crown filed an affidavit dated 13 March 2020 by a registered psychologist employed by the Department of Corrections, Ms Helen Garrett. She was cross-examined on her affidavit by Ms Gray. Ms Garrett provided information about the programmes available in prison to address violent offending and the general principles that apply when considering eligibility and suitability for such programmes. She also addressed specific matters raised in Dr Cavney’s report and Mr Briggs’ affidavit.
• [34] In summary, she states that Mr Briggs has been provided with several and regular opportunities to engage with psychological services as early as 2011, as well as attend the Drug Treatment Unit (DTU) early in 2012, but he has chosen not to participate in these processes. He has engaged in two Short Motivational Programmes (SMP) designed to increase his motivation to change. However, this on-going lack of motivation, as well as on-going offending, active charges, high/maximum security classifications and time left until parole eligibility date (PED) have contributed to his opportunities to engage in psychological high intensity programmes being limited.
• [35] Ms Garrett states that due to his PED being extended to 2027, he will likely be assessed and considered for suitability for the 32-week Special Treatment Unit Rehabilitation Programme for Violent Offending (STURP-VO) in 2025, although he could be considered at an earlier time if he reduced his high security classification to, at least, low-medium and evidenced an active and sustained motivation to engage in psychological assessment and subsequent intervention. Should he demonstrate motivation, he could also be considered for the Drug Treatment Programme (DTP — formerly the DTU).
• [36] In cross-examination, Ms Garrett acknowledged that the first course undertaken by Mr Briggs was a SMP in 2016, seven years after entering prison. She also acknowledged that having spent the last 13 years almost entirely in high or maximum security, Mr Briggs had not been selected for any substantive rehabilitation programme because of his security classification and time to PED, despite being listed for the STURP-VO since 2011. She was not able to dispute Dr Cavney’s conclusion of “pervasive and chronic low mood characterised by a loss of hope about his future and impaired motivation to proactively seek interventions that might assist him in moving forward”.
• [37] The sentencing Judge gave a discount of six months for Mr Briggs’ willingness to undergo treatment and his inkling of remorse.^[34] The Judge also acknowledged that:

[24] ... I have read the pre-sentence reports, the psychological and psychiatric reports. It is clear enough that you have a strong anti-authoritarian, antisocial and confrontational attitude with problems with alcohol, impulsivity, recklessness and risk-taking. Your sentences of imprisonment between 2004 and 2008 have prevented any real treatment for you until fairly recently.

[25] Recently, you have begun to co-operate and engage in treatment. This must, by the prison authorities, have been seen to be fairly encouraging because your security classification was recently reduced. Both the psychiatrist and the psychologist note that there is an obvious risk of future violence whether you are in prison or in the community.

[26] In prison, you are susceptible to the inmates’ pro-violence code; and in the community you are susceptible to alcohol, impulsivity and risk-taking. These kinds of comments are reflected in the pre-sentence reports as well.

• [38] As a result of the material that was available to him, the Judge gave Mr Briggs a six-month discount for personal mitigating factors. Dr Cavney’s diagnosis of depression and post-traumatic stress disorder does not add substantially to the picture of Mr Briggs’ offending, such that a further discount is warranted. Dr Cavney’s diagnosis was made following an interview of Mr Briggs in December 2019, seven and a half years after the offending on 1 June 2012. For the purposes of sentencing, the Judge had reports from Dr Pillai and Ms Visser. Dr Pillai had recorded Mr Briggs’ explanation for the offending as occurring when Corrections officers refused his attempts to leave Mr Matenga’s prison cell. He gave a similar account to Dr Cavney, saying he felt trapped in the cell which triggered an acute stress reaction. Dr Cavney diagnosed a post traumatic stress disorder while Dr Pillai diagnosed an antisocial personality disorder. Whatever the proper diagnosis (and they may both be correct), Mr Briggs reacted in an impulsive, irresponsible and aggressive manner with scant regard for his own safety and the safety of others. Corrections officers reported him as being out of control.
• [39] In Taueki, this Court observed that while a mental illness or disorder may be a mitigating factor, suggestions of diminished responsibility by reason of a psychiatric or behavioural disorder must be treated with caution.^[35] Importantly, even if the offending can be attributed to a psychiatric disorder, that should not necessarily be seen as a mitigating factor. In some cases, reduced moral responsibility may be countered by proper consideration of public safety.^[36]
• [40] Although the report by Dr Cavney and the affidavit of Mr Briggs are not strictly speaking fresh in that they are evidence which could have been called at sentencing, the Crown responded with an affidavit from Ms Garrett on various matters relating to Mr Briggs’ time in prison. We also found them useful in considering the various grounds of appeal. We accordingly admit the report and affidavits as new evidence on appeal as being expedient in the interests of justice.
• [41] Thirdly, Ms Gray submits that the Judge erred in imposing an MPI of seven years, being two-thirds of the sentence of 10 years and six months’ imprisonment. An MPI can be imposed on sentences of more than two years where the Court is satisfied that the ordinary non-parole period is insufficient for all or any of the following purposes:^[37]

(a) holding the offender accountable for the harm done to the victim and the community by the offending;

(b) denouncing the conduct in which the offender was involved;

(c) deterring the offender or other persons from committing the same or a similar offence; and

(d) protecting the community from the offender.

• [42] The Judge did not give detailed reasons for the imposition of an MPI. All he said was, “[i]n my view, it is clearly justified for reasons of deterrence, denunciation and to hold you accountable.”^[38] In doing so, the Judge simply identified three of the statutory purposes. He did not refer to comparative decisions or to other relevant statutory purposes and principles, such as the obligation to impose the least restrictive outcome that is appropriate in the circumstances.^[39]
• [43] It is here that we see merit in the prospective appeal.
• [44] Mr Briggs is facing a significant term of imprisonment. Even without an MPI, his sentence is very lengthy. In our view, it is sufficient by itself to hold him accountable for the harm he has done, to denounce his conduct and deter him from committing further offences. Given his entrenched position in prison, any hopes of rehabilitation should not be extinguished. On the contrary, rehabilitation should be encouraged to the extent possible, especially so when Mr Briggs has demonstrated his willingness to engage in rehabilitation.
• [45] It is clear that Mr Briggs has been unable to access significant and comprehensive rehabilitative programmes because his PED is years away. We are of the view that rehabilitative programmes should be undertaken sooner rather than later. In saying that, we acknowledge the availability of rehabilitation programmes in prison and the timing of such programmes is a wider issue, of importance and some public controversy. Its resolution is beyond the scope of this judgment.
• [46] We note that when Mr Briggs was sentenced to nine years’ imprisonment on 14 August 2009, the Judge considered the imposition of an MPI, but declined to do so.^[40] When he was sentenced to three years and ten months’ imprisonment on 3 November 2017, the Judge did not even consider the imposition of an MPI.^[41] In the present case, after giving a discount for “encouraging signs” he was willing to undergo treatment and his “inkling of remorse”, the Judge imposed the maximum MPI of two‑thirds of the full term of the sentence.^[42] We think that the balance was better struck by not imposing an MPI at all. That would give more flexibility to the Department of Corrections to offer appropriate rehabilitation sooner to Mr Briggs, but also the Parole Board when considering Mr Briggs’ ultimate release. The Parole Board plays a very important role in the process. It should be noted that one of its guiding principles is that when making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.^[43] Mr Briggs will therefore not be released until it is safe to do so, but he will benefit from seeing the Parole Board sooner rather than later.

Result

• [47] The application for an extension of time is granted.
• [48] The application to adduce fresh evidence is granted.
• [49] The appeal is allowed to the extent that the minimum period of imprisonment of seven years is quashed.
• [50] The sentence of ten years and six months’ imprisonment is confirmed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Crimes Act 1961, s 188(1).

^[2] Section 189(2).

^[3] Section 202C.

^[4] Section 196.

^[5] R v Briggs [2016] NZDC 8326.

^[6] At [4]–[17].

^[7] At [5].

^[8] At [40].

^[9] At [27]–[30].

^[10] At [30].

^[11] R v Briggs HC Whangarei CRI-2008-027-660, 14 August 2009.

^[12] R v Briggs, above n 5, at [31]–[32].

^[13] At [43].

^[14] At [47].

^[15] At [44].

^[16] Criminal Procedure Act 2011, s 397(3)(h). The September 2014 assault was laid as a category 2 charge under the Criminal Procedure Act. Notwithstanding, it was agreed that this Court had jurisdiction to hear the entire sentence appeal pursuant to s 384A(2)(a) of the Crimes Act because Mr Briggs was sentenced on the same occasion in respect of all the charges: Briggs v R CA204/2019, 1 November 2019 (Minute of Brown J). In any case, the Court has a comparable power to extend time under s 248(4) of the Criminal Procedure Act, which we would exercise if it applied in this case.

^[17] R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (CA) at [99] and [106].

^[18] Mikus v R [2011] NZCA 298 at [26]; and R v Slavich [2008] NZCA 116 at [14].

^[19] R v Davis [2007] NZCA 577 at [13].

^[20] R v Lee, above n 17, at [97]–[99].

^[21] Butcher v R [2015] NZCA 102 at [7].

^[22] R v Lee, above n 17, at [115].

^[23] S (CA88/2014) v R [2014] NZCA 583 at [12].

^[24] Butcher v R, above n 21, at [7].

^[25] R v Briggs [2017] NZHC 2696.

^[26] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

^[27] At [31].

^[28] At [34].

^[29] At [40].

^[30] At [41(c)].

^[31] D (CA197/2014) v R [2014] NZCA 373 at [18]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[36].

^[32] Crimes Act, s 389.

^[33] R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA) at [22]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [117]–[120].

^[34] R v Briggs, above n 5, at [41].

^[35] R v Taueki, above n 26, at [45].

^[36] R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493 at [36].

^[37] Sentencing Act 2002, s 86(2).

^[38] R v Briggs, above n 5, at [44].

^[39] Sentencing Act, s 8(g).

^[40] R v Briggs, above n 11, at [25].

^[41] R v Briggs, above n 25.

^[42] R v Briggs, above n 5, at [41].

^[43] Parole Act 2002, s 7.