D v NEW ZEALAND POLICE [2019] NZHC 2177

D v NEW ZEALAND POLICE [2019] NZHC 2177 [2 September 2019]ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES),OCCUPATION(S) OR IDENTIFYING PARTICULARS OFAPPELLANT/ACCUSED/VICTIM/CONNECTED PERSONS PURSUANT TOS 200 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-14[2019] NZHC 2177BETWEEN DAppellantAND NEW ZEALAND POLICERespondentHearing: 28 June 201910 July 2019 – Further submissions received from Appellant7 August 2019 – Reply submissions received from Respondent21 August 2019 – Reply submissions received from AppellantAppearances: Appellant in PersonS B Manning for the RespondentJudgment: 2 September 2019JUDGMENT OF CULL J[1] D appeals against his conviction1 and sentence2 for 11 offences: threateninggrievous bodily harm (three charges),3 threatening to kill (five charges)4 andpossession of an offensive weapon (three charges).5 The threat charges relate tovarious threats communicated via text message, Facebook and email, spanning a1 Police v [D] [2018] NZDC 1777 [Conviction Decision].2 Police v [D] [2019] NZDC 6520 [Sentencing Decision].3 Crimes Act 1961, s 306, maximum penalty seven years' imprisonment.4 Section 306, maximum penalty seven years' imprisonment.5 Section 202A, maximum penalty three years' imprisonment.period of about 10 months, directed primarily to D's former partner and her parents.The weapons charges relate to weapons in D's possession when he was stopped byPolice, in a campervan he had hired, while travelling to Napier, where his partner lived.[2] In April 2019, D was sentenced to a total of six years' imprisonment,6 with aminimum period of three years, eight months.[3] D appeals both his convictions and sentence on the grounds that the integrityof the trial and its process were compromised, and the Judge erred in fact and law.[4] The Crown opposes the appeals against both conviction and sentence on thefollowing grounds:(a) The evidence against D was overwhelming.(b) The District Court Judge applied the correct legal principles.(c) The sentence imposed was commensurate with the very serious natureof the offending.(d) The sentence was justified to deter D, and to protect the public and inparticular his former partner from him.Background and the District Court decisions[5] The relevant facts are set out in detail in the District Court's reservedjudgment.7 In summary, D and his partner, CM, were in a relationship for some 12years, up until November 2016. There is one child of the relationship, R, who is elevenyears old. D and his partner initially lived in Hawke's Bay, then moved to Australiain 2011 and ended up living in Brisbane. They enjoyed a comfortable lifestyle inBrisbane with good jobs and good income.6 Sentencing Decision, above n 2, at [73]. This was made up of five years and six months'imprisonment for the eight charges of threatening to kill or cause grievous bodily harm, and sixmonths' imprisonment for the unlawful possession of offensive weapons. The sentences wereimposed cumulatively.7 Conviction Decision, above n 1.[6] However, in early 2016 D was remanded in custody pending the hearing of acharge or charges against him. It was not clear what these charges were. During thatperiod in custody, CM elected to send R back to Hawke's Bay to live with hergrandmother. On D's release from custody, in about July 2016, an agreement wasreached between D and CM that they separate, but she agreed to provide emotionaland financial support to D to help him "get back on his feet". D says this agreementwas reached because when he was in prison, CM had sold most of his property. CMthen left Australia in November 2016 and returned to live in the Hawke's Bay with R.[7] From there, the relationship deteriorated significantly. This was due to anumber of disputed issues resulting in D ultimately sending a barrage of texts, emailsand Facebook messages to CM of an increasingly violent nature. D threatened to causegrievous bodily harm to her stepfather, threatened to kill her mother, and repeatedly,over many months' duration, threatened to kill her and to cause her grievous bodilyharm.[8] The threatening messages were detailed and violent as to the nature of theinjuries and threats that D intended to cause his partner. The District Court Judgedescribed them as "unrelenting, in that on many occasions [the threats] were sentrepeatedly on the same day or over a series of days in what I am satisfied was aprolonged and premeditated series of attempts to intimidate and significantly frighten[CM]".8 The Judge continued:[17] In those threatening messages, common violent acts and themes ofviolent retribution are present, including hunting [CM] down, cutting heropen, slicing her face, melting her face by burning her face, shooting her witharrows, and a common threat, that you would broadcast the results of youractions to friends and acquaintances on social media showing, effectively,your revenge upon her and your "destruction of her prettiness," as youdescribed it.[9] D's defence was that he was not the author of those messages, that his formerpartner had infiltrated his social media and other electronic communication devicesand had sent the violent and abusive threats to herself. The defence theory was thatshe had participated in an elaborate, vile dialogue with herself in order to bring a false8 Sentencing Decision, above n 2, at [16].criminal complaint against D concerning these threats to kill or to cause grievousbodily harm, which would then result in D's arrest, should he return to New Zealand.[10] This interpretation of the evidence was rejected by the Judge as incapable ofserious belief on the evidence presented.9[11] D then arrived in New Zealand on 10 October 2017. Prior to coming to NewZealand, he advised CM that he had obtained a new passport and had tickets to NewZealand. The Judge found these communications were malicious in that they wereintended to increase CM's fear that D would find her and carry out the violent acts hehad threatened to commit.[12] On arrival to Auckland Airport on 10 October 2017, D texted and then calledhis former partner to let her know he was in New Zealand. She notified the NapierFamily Harm Policing team. She had first made contact with this team two or threeweeks after her first arrival back in Hawke's Bay in November 2016. Such was herlevel of concern for her and her family's safety as a result of D's constant threateningemails and other communications.[13] D was intercepted on 12 October 2017 at gunpoint by the Armed OffendersSquad on the outskirts of Napier. He was found in a campervan which contained,amongst other things, camping equipment, food and supplies, a knife, a crossbow witharrows and a machete. When asked what weapons he had on him, D immediatelynamed these three offensive weapons. The Judge rejected D's contention that theseitems were to be used for hunting small game in New Zealand and as presents for D'sbrother-in-law. He found that, not only was D the author and originator of the threatsto kill or cause grievous bodily harm to his former partner or her parents, but he hadalso deliberately bought weapons in Auckland, after his arrival in New Zealand, toenable him to carry out those threats when he got to the Hawke's Bay. The Judgeconcluded:[214] I am satisfied D specifically travelled to New Zealand for theprobable, frequently declared purpose of killing [her], or of eventually killingher after abducting her, then cutting and mutilating her (in addition to slashing9 Conviction Decision, above n 1, at [196].and slicing her face, D refers in one of his email to cutting off her "tattoeedfoot, the one with the silver fern on it"), to probably burning her flesh off herface, a very often repeated threat messaged by him, I am satisfied, in variousmedia.[14] Not only did the Judge find that D made very specific and detailed threats buthe had the intention, and the means, to carry them out.[15] The Judge then convicted D of all charges in a reserved judgment issued on 22November 2018, after a five-day hearing in which D represented himself, with thesupport of Mr Philip as standby counsel.10 Following the conviction the Judge calledfor D to undergo psychiatric assessments.[16] As D would not participate in the psychiatric assessment process, the Judgeordered a two-week secure care remand, as recommended by Dr Parsonson, to enableD to be observed by way of a formal psychiatric assessment. This was unsuccessful.D refused to participate in any formal assessment process because of his concern thathis words would be used against him to paint an incorrect picture of his mental health.However, the psychiatrist, Dr Greg Young, was able to make the followingobservations:In my opinion, [D] does not suffer from a major psychiatric disorder such asschizophrenia or a related psychosis or major mood disorder. In my opinion,his behaviour as reflected in the messages provided by police and his presentideas about corruption are not the result of fixed delusions.In my opinion, the clinical observations do not support a defence of insanityin relation to any of the charges. In my opinion, [D] has serious psychologicalproblems especially in the area of anger management, violence risk and copingwith rejection. These problems are all amenable to psychological treatmentThere is a greater than usual degree of uncertainty in this case because [D]was unwilling to co-operate with the assessment. The effect of this is that [D]may remain fixed in his beliefs about injustice even if an appeal against hisconvictions were to be heard and declined. In that case, the possibility thathis beliefs are part of a delusional system may need to be reassessed.Considering the seriousness of the threats and risks to [his former partner], hermother and stepfather, I recommend that a further assessment be done at thetime of parole is considered.10 For the difference between an amicus and standby counsel, see Fahey v R [2017] NZCA 596,[2018] 2 NZLR 392 at [81]–[84].[17] Dr Young concluded that there was "no psychiatric impediment to justicetaking its course."[18] With this information, the Judge then sentenced D to a total of six years'imprisonment.11 He identified the following aggravating factors in relation to theoffending:(a) The vulnerability of CM, having been in an intimate relationship withD for 12 years, since she was 15 years old.(b) The premeditation and escalation of the threats: the threats fromAustralia, the threats to come to New Zealand, then telling her he wasin Auckland, then on his way to the Hawke's Bay. This was calculatedand designed by D to cause maximum fear to CM and her immediatefamily.(c) D's clear anger, jealousy and desire for revenge against CM.(d) D is yet to accept any responsibility, let alone accountability, for hisactions.(e) D intended to give effect to the threats and that he intended CM to takethe threats against her and her family seriously.(f) The significant impact the offending has had on CM's life.[19] The Judge found that taken in its totality, the sheer scale, duration, calculationand violence within the threats elevated the case to "near to the most serious of cases"for these offences.12 As a result, the Judge took a relatively high starting point of fiveyears and six months' imprisonment for the threatening to kill or to cause grievousbodily harm charges.13 He then applied an uplift of six months cumulatively for the11 Sentencing Decision, above n 2, at [73].12 At [60]–[61].13 At [64].three charges of unlawful possession of offensive weapons.14 He found there were norelevant mitigating factors personal to D that would justify a reduction and thereforethe total sentence awarded was six years' imprisonment.15[20] Lastly, the Judge considered the issue of a minimum period of imprisonmentwhich the Crown had sought under s 86 of the Sentencing Act 2002. The Judgeimposed a minimum term of imprisonment of three years eight months, that is, two-thirds of the five years six months' imprisonment.16Approach to conviction appeal[21] An appeal against conviction in a Judge-alone trial is a general appeal,governed by s 232 of the Criminal Procedure Act 2011 (the Act). The appellant mustsatisfy the Court that a miscarriage of justice has occurred, either because the Judgeerred in his or her assessment of the evidence, or for any other reason.17 A miscarriageof justice is "any error, irregularity, or occurrence" that "has created a real risk that theoutcome of the trial was affected" or "has resulted in an unfair trial or a trial that wasa nullity".18 As s 232 makes clear, not every error or irregularity causes a miscarriageof justice.19[22] The Supreme Court has recently re-examined the role of s 232(2)(b) and thegeneral function of an appellate court.20 In Sena v Police, the Supreme Court held thatthe function of the appellate court is to re-evaluate the evidence, and an appellant isentitled to the appeal court's determination of whether the first instance Judge wasright or wrong substantively on the outcome. On this approach, if the appellate courtcomes to a different view on the evidence, the trial Judge necessarily will have erredin their assessment.2114 Sentencing Decision, above n 2, at [65].15 At [67].16 At [80]-[81].17 Criminal Procedure Act 2011, s 232(2).18 Section 232(4).19 "A miscarriage is more than an inconsequential or immaterial mistake or irregularity": Matenga vR [2009] NZSC 18 at [30].20 Sena v New Zealand Police [2019] NZSC 55.21 At [38].[23] The Court cautioned, however, that this change of approach does not mean therole of the appellate court is to consider the issues de novo as if there had been nohearing at first instance. Since it is an appeal, it is for the appellant to show than anerror has been made. In assessing whether there has been an error, an appellate courtmust take into account any advantages a trial judge may have had. Where thechallenge is to credibility findings based on contested oral evidence, an appellate courtwill exercise "customary caution".22[24] If the appeal is successful, the Court must set aside the conviction and eitherdirect that a judgment of acquittal be entered or that a new trial be held, or make anyother order it considers justice requires.23Grounds of appeal[25] D set out his grounds of appeal in nine parts, both challenging the Judge'sfindings and making allegations of impropriety against various participants within thecriminal justice system. Following the hearing of the appeal before me, D filed furthersubmissions, largely addressing his concerns about the "Vodafone forensic reports"and applying for disclosure of Vodafone records and forensic reports in the control ofthe prosecution. D also applied for a hearing to determine whether Vodafone is inpossession of "specific evidence in the form of text-related messages".[26] I directed that D's further submissions and material be served on therespondent to address the matters raised.24 Mr Manning filed and served submissionsin response and D has filed and served a further memorandum addressing "issuesraised subsequent to appeal."[27] I note that D's additional submissions and his reply relate to the charges ofthreatening to kill or cause grievous bodily harm, where the threat was communicatedby text message.25 I will deal with the additional submissions under the first ground22 Sena, above n 20, at [38]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103,[2008] 2 NZLR 141 at [13] (footnote omitted).23 Criminal Procedure Act 2011, s 233(3).24 [D] v New Zealand Police HC Napier CRI-2019-441, 1 August 2019 (Minute of Cull J).25 Those charges are CRN 5138, 5137, and 3138.of appeal, with my reasons on each. Where the appeal grounds overlap, I haveconsidered them together.First ground: Threatening to kill or cause grievous bodily harm by the use of text/vibermessages[28] D submits that the "text messages" that led to three of the charges andultimately conviction, are not in fact text messages and are instead messages on theViber application. He says that his former partner was able to, and did, manufacturethe messages, showing them as sent from D on her phone, but in fact she had sent themto herself. He says she then presented the messages to the police to look as thoughthey were text messages sent from D, thus framing him which, he says, is consistentwith her past behaviour.[29] D was convicted of three charges relating to messages sent by text message:one charge of threatening to kill his former partner, one of threatening to kill hermother, and one of threatening grievous bodily harm to her stepfather.26 The textmessages, the subject of the three charges, were sent to the victim from D's VodafoneAustralia mobile number.[30] The messages are shown as being from [D's first name] and as having beensent from an Australian cellphone number. There was corroborative evidence at thetrial confirming D used that number while resident in Australia at the relevant timeand it was the same number in his application for a passport. The content of themessages is also consistent with the tone of the ongoing threatening messages thatfollowed.[31] The victim took her own cellphone into the Napier Police Station on 26 August2017 and showed the text messages to a Constable, who took photographs of themessages and they were produced as exhibits at trial. It is those text messages that Dis asserting the victim created herself by the use of Viber.26 Those charges are CRN 5138, 5137, and 3138.[32] His former partner was cross-examined extensively on this topic, both by D inperson and counsel assisting. She emphatically denied the allegation that she had"manipulated" a Viber message to look like a text message, arranging for it to appearon her own phone as if it were a text message sent from D. D alleges that his formerpartner on an earlier occasion in Australia had falsified Viber messages, which wereprovided to Police. This too was put to his former partner in cross-examination, andshe emphatically denied it.[33] In this appeal hearing, D alleged that the Crown never disclosed his"Vodafone" records. D says that this was a deliberate concealment because disclosureof his Vodafone records would prove that the text messages were not sent from him orhis cellphone.[34] Mr Manning in reply to D's allegation of deliberate concealment explained thatD arrived in New Zealand with a cellphone. Prior to that, he was using a phone numberin Australia, which was on the Vodafone network. The SIM card for the appellant'sVodafone Australia phone number was not found on D at the time of his arrest. Thepolice, therefore, cannot say which text messages were or were not saved or deletedfrom the SIM card that D used in Australia.[35] During the police investigation into this matter, the police never obtained aproduction order for his Vodafone number in Australia. However, when he arrived inNew Zealand, D purchased a Vodafone prepaid SIM card and the photographs of textmessages from that Vodafone data are contained in exhibit 2, the volume entitled"Evidential messages". The police then sought a production order for the prepaidVodafone New Zealand number on 9 October, when D arrived in New Zealand. Hewas apprehended on 12 October.[36] Mr Manning explained that D's Australian cellphone was taken pursuant to asearch warrant and analysed by the police forensic unit. Some text messages had beensent from the memory of the handset of the cellphone itself. Because the SIM cardwas never found, the police have not gained access to the SIM card that related to D'sAustralian cellphone number.[37] Importantly, as Mr Manning told the Court, the police did not request or receiveany records from Vodafone Australia relating to D's Vodafone cellphone number, sothe police are not withholding information from D. In his subsequent replysubmissions, Mr Manning explains that the police do not have the authority, under theSearch and Surveillance Act 2012, to request a New Zealand Court to issue aproduction order to have effect in Australia. Such a request for records from anoverseas-based company needs to be made under the Mutual Assistance in CriminalMatters Act 1992. Such a request can be made only by the Attorney-General.27[38] In his Memorandum, D challenges Mr Manning's explanation as to why thePolice did not obtain a production order from Vodafone Australia and does not acceptthe jurisdictional difficulty in doing so. Although D reiterates his concern about theneed for confirmation of the identity of the sender of the text messages, for reasonswhich I canvass below, I do not uphold D's submission.Analysis[39] After arriving in New Zealand on 9 October 2017, D purchased a VodafoneNew Zealand SIM card, which was inserted into the mobile phone handset D hadbrought with him from Australia. When he was stopped by the Napier Police on 13October 2017, D's mobile phone with the New Zealand SIM card was found in thecampervan he was driving, together with packaging that had come with the NewZealand Vodafone SIM card he had purchased. The police applied for a productionorder and Vodafone New Zealand provided the police with cellphone data for D's NewZealand cellphone number. The data covered the period 12.00 am to 9 October 2017to 5.30 pm 12 October 2017.[40] From D's handset, the police accessed text messages which were saved to thehandset of the cellphone. The handset was forensically examined by Ms Zigliani ofNew Zealand Police digital forensics unit. The text messages which were saved to thecellphone handset were extracted, including text messages, call logs, emails andphotographs and saved to a CD disk that was provided by way of disclosure to counsel27 Mutual Assistance in Criminal Matters Act 1992, ss 8, 10 and 11.formally representing D on 9 May 2018. The CD was also made available to theforensic analyst engaged to assist D at trial.[41] Mr Manning advises that some portions of the text messages that were savedto the memory of D's handset were produced in evidence, to show a connectionbetween D and the handset.[42] From the notes of evidence, D at trial confirmed that he was aware of the datafound on his mobile handset and in re-examination he makes specific reference to theabsence of the relevant text messages on his handset's memory.[43] At the hearing, Mr Manning submitted that the text messages from D's handsetshould not be confused with Vodafone data. Mr Manning identified from the trialnotes of evidence, where counsel assisting re-examined D and identified thedocument, known as "attributions". In the exhibit book, the police had included someof the text messages that were found on D's handset as evidence connecting D to thehandset itself.[44] Mr Manning during the hearing explained that the inclusion of the textmessages in the exhibit booklet may have led D to assume that those text messagescomprised all the text messages he ever sent and received, and thus queried thedisclosure of the documents from Vodafone Australia. As Mr Manning has submitted,both in writing and orally, the police did not seek a production order from VodafoneAustralia.[45] Turning, then, to D's submission that the victim manipulated the text messagesby the use of Viber, he pointed to the indication that a signal is present on her Samsungcellphone, which can be seen from the screenshot in the exhibit. I accept MrManning's response in respect to D's submission. On a perusal of the screenshots inthe exhibit 2 booklet, a Viber icon on the icon bar does not mean that the content onthe screenshot is not a text message. The Viber icon appears alongside a number oficons, such as the percentage of the battery, the date and time, WiFi connectivity, andthe 4G icon. The presence of the icon does not equate to a signal being present on herSamsung cellphone demonstrating that the message was created on Viber, as Dsubmits. I accept that the Viber icon was present, but this does not mean that themessage was sent by Viber. During the trial, the victim had her cellphone in Courtand made it available when D put it to her that she had somehow manipulated hercellphone to create text messages to look as though they had come from D.[46] There is further evidence which supports my rejection of D's arguments. Theidentical language used in the text messages is also found in the emails sent by D andhis Facebook messages. The District Court Judge found the content of the textmessages bore a striking similarity to the words in both the Facebook messages andthe emails such as:You will deserve what's coming to you. Tell that weak bitch X he's a weakf .. cowNumerous examples correlate the language in the Samsung text messages with theemails on Facebook messages sent by D to the victim, as exhibits 2 and 3 demonstrate.Disclosure[47] The CD containing the data extracted from D's electronic devices, includinghis handset, was provided to his counsel and his retained expert, the independentanalyst. The material contained on the CD was provided to D in hard copy, deliveredto him at Hawke's Bay Regional Prison. Police records confirm that the hard copydisclosure of the file was made on 24 July 2018.[48] In the additional material filed by D following the hearing, he has made severalrequests for disclosure under the Criminal Disclosure Act 2008. As stated earlier, theserelate to the forensic report and data from Vodafone Australia. I decline D's requests,albeit that the applications were not made in the proper form, and set out the summaryof reasons which I adopt from Mr Manning's submissions. They are:(a) The police did not request or receive any forensic report from VodafoneAustralia relating to D's Vodafone Australia cellphone number.(b) D was not in possession of a Vodafone Australia SIM card at the timeof his arrest.(c) The only Vodafone data requested and received by the police related toD's Vodafone New Zealand cellphone number.(d) D's handset had some text messages saved to it, but these were not therelevant text messages sent to the victim.(e) All digital data and reports relating to the matters before the Court weredisclosed to D prior to trial.Conclusion[49] For reasons which are set out extensively in the Judge's reserved decision,there were many reasons justifying the Judge making a finding in favour of thevictim's credibility and against D:(a) An acceptance of the unchallenged evidence of the digital forensicsexpert. Her evidence linked, in many respects, D to the various devicesand to documents found on his laptop computer entitled "This bitch".(b) A rejection of D's evidence and various explanations for how thethreatening material came to be on his devices or sent from them.(c) A rejection of the suggestion that his former partner would have createdthe messages and sent them to herself.(d) That the content of the messages contained detail that could only havecome from D. For example, references to his relationship with her, talkof their daughter, and financial circumstances.(e) The content of the messages, in addition to containing the threateningmaterial, also contained meaningful expressions of affection towardshis former partner that was consistent with D having previously had alongstanding relationship with her and being jealous of her.(f) The language used in the messages was distinctive and consistent withthe language used by D when giving evidence in Court.[50] As the Crown submits, this was a straight credibility determination by theJudge and one which he had ample evidence to make in favour of his former partner.On the evidence before this Court, and hearing from D, I cannot find error in theJudge's credibility findings, and so uphold them.Second, sixth and eighth grounds: false convictions, Department ofCorrections/Probation, and the IPCA and Judicial Conduct Authority[51] D submits that in his bail hearing, the Judge relied on his "previousconvictions" in Australia to deny his bail, when they were not convictions but "provenprevious offending". He submits the Department of Corrections, Probation Services,the IPCA, and the Judicial Conduct Authority are conspiring against him inmisrepresenting his criminal history in this matter.[52] There was an acknowledgement by the Crown that the Police were technicallywrong in referring to the Australian records as previous convictions. Although it wasunfortunate that the police misinterpreted the Australian previous criminal history forD at his bail hearing, this issue and mistake have no bearing on D's guilt or innocencefor the offence for which he has been convicted.[53] The Judge addressed this issue specifically. He was satisfied that thedescription in the bail opposition form of Australian offending as "convictions" was agenuine error. He held:28[164] As Constable Abbott and also Constable Bailey each acknowledgedin their respective evidence, the bail opposition prepared and presented to thecourt by police was technically wrong in referring erroneously to "relevantprevious convictions". It should have referred to "relevant proven previousoffending." However, in my judgment, as I have referred to, this was only atechnical error of terminology and would not have been determinative.[180] With respect, I have found no valid evidential basis for the suggestionthat there has been malfeasance or wrongful actions by any member of the28 Conviction Decision, above n 1.police in the conduct of this investigation and prosecution (other than thetechnical error relating to the use of the word "convictions" in the police bailopposition form, as I have discussed).[54] I cannot uphold D's allegations and these grounds of appeal fail.Third and fourth grounds: evidence from members of D's family[55] D submits that Detective Bailey falsely stated that D's mother told DetectiveBailey that she was "extremely frightened" of D. D relies on his cross-examination ofhis mother who, in response to questions from D, confirmed she had never toldDetective Bailey she was frightened of D.[56] I accept the Crown's submission that these issues have no bearing on thisappeal. D's mother was called to give evidence on D's behalf at the trial. There wasa divergence of evidence as between D's mother and Detective Bailey, but only onmatters that were relevant to comments contained within a bail opposition form, whichis not relevant to the issues on this conviction and sentence appeal.Fifth ground: past legal representation[57] D submits his previous legal representation has been inadequate and hasaffected his ability to have a fair trial.[58] D chose to be self-represented at trial. However, he was assisted by anexperienced criminal lawyer acting as standby counsel. Although D may have haddifficulties in the past with assigned counsel, this had no bearing on whether hereceived a fair trial. I note the Judge exercised considerable patience and latitudetowards D in recognition of the fact that he was self-represented, albeit with a standbycounsel, who still played a significant role throughout.[59] The Judge addressed these issues in the judgment:29[8] D is self-represented. Although he has had lawyers previouslyassigned to him by Legal Services, for particular reasons unknown to me Dremains self-represented.29 Conviction Decision, above n 1.[9] Mr Philip, however, has been appointed by the Court as an Amicus, toassist D in the conduct of his defence and specifically to cross-examine thecomplainant on behalf of D (as required by s 95 Evidence Act 2006).[10] It is apparent to me from the way the defence case has been presentedby both D, or Mr Philip, and on many occasions by them both, one after theother, that Mr Philip has liaised closely with D in advising him of the relevantlegal and relevant factual issues and in supporting D in putting D's case clearlybefore the court.[11] Additionally, D has shown, in the way in which he has acquittedhimself in the conduct of this case, including his own defence, a strong graspof the relevant issues, both legal and evidential.[60] D represented himself at this appeal hearing. I concur with the Judge'scomments that D is articulate, writes submissions well, and has a strong grasp of theissues involved in this appeal. The Judge has carefully traversed the matters raised byD, who was assisted by an experienced criminal lawyer. I cannot find any basis forholding that his trial was unfair or his legal representation, previous or otherwise, wasinadequate. I reject this ground of appeal.Seventh, ninth, twelfth and thirteenth ground: psychology reports, possiblereoffending, ambush pre-trial and name suppression[61] These matters have no bearing on the determination of the conviction appeal.The "ambush pre-trial" relates to an earlier occasion when the trial was set to proceedbut did not. The concerns expressed therefore have no bearing on the trial that resultedin D's convictions. The name suppression argument is that D was not granted namesuppression until he sent documents to the media covering the "widespreadcorruption" of the police and Court system. This has no relevance to the determinationof the conviction appeal, but I will come back to the relevance of the psychologicalreports and possible reoffending when I address the sentence appeal.Tenth ground: weapons[62] D submits that the Judge relied on Constable Abbott's statements that theweapons found were "consistent with the threatening messages"; that is, that theweapons had been referred to in the threatening emails. He submits the words"machete" and "crossbow and arrow" were not in any email sent.[63] In response to D's submission that there is no evidence of D's use of acrossbow or shooting, Mr Manning referred to the various messages sent to CM, whereD threatened to shoot her. Mr Manning referred specifically to Tuesday 10 October2017 at 2.43 pm, where D contacted her after he arrived in New Zealand. He sent amessage to her from his Hotmail account to her account. In that message there is aclear reference to "shooting". Although there is no mention of machete or crossbowand arrow, D was apprehended with a bow and arrow following the reference toshooting the victim in his email. The Judge's reference to the weapons being foundas consistent with the threatening messages was appropriate, in light of the evidencebefore the Court. I do not consider that there is any error in the Judge's reliance onthe Constable's statements.[64] D also raised a concern about the Judge's to the fact that D has no previousexperience in using a crossbow other than firing one or two arrows, it would seem,missing from those he obviously bought in Auckland. D pointed out that there wereno missing arrows. The two arrows were depicted in the photograph exhibits and werenot missing or available for the inference that the Judge drew.[65] Mr Manning conceded that D's earlier use of the arrows was not part of theCrown case, but the Crown case was based on the inferences to be drawn from thecircumstances of D's possession and the Judge's extrapolation of D's previousexperience is not something that was pursued by the Crown.[66] I find that on the evidence adduced at trial there was a basis for the Judge tofind that the weapons were consistent with the threatening messages. The Judge'sfurther comment about D's weapon experience was not part of the Crown case andwas not relevant to the charges he faced. D was convicted on the charges on the basisof the evidence supporting the threatening charges (three plus five counts) andpossession of an offensive weapon. I find the Judge's comments had no relevance tothe actual charges D faced, and were therefore irrelevant and not fatal to his ultimateconviction of D on the 11 charges.Eleventh ground: "This bitch" documentation[67] D submits he did not write these documents, but they were manufactured byhis CM's mother and stepfather.[68] The Judge found that the evidence against D was compelling. This led theJudge to firmly reject D's claims that someone else was responsible for the creationof the documents on his computer. The reasons were:(a) Google searches on D's laptop were consistent with items found to bein his possession and his previously-expressed intentions towardsharming her. The time of these searches coincided with his travel toand presence in New Zealand.(b) The presence and content of the three documents entitled "This bitch"– Parts 1, 2 and 3 on the appellant's laptop (found in his possession).These documents contain content that is remarkably similar to thethreatening messages, and a level of anger and threat towards the victimthat is matched by that in the threatening messages. The document wascreated nine months before D travelled to New Zealand.[69] The Judge rejected D's evidence that someone else was responsible forcreating the content in the "This bitch" documents.[70] The similarity in language, as I have found in relation to the text messages,emails, and Facebook messages applies equally to the creation of "this bitchdocument". The Judge has traversed the evidence, where he had the opportunity toassess the oral evidence and the credibility of the witnesses, and provided reasons asto why he rejected D's submission that the documentation was manufactured by hispartner's mother and stepfather. I can find no basis for interfering with this finding,and I reject this ground of appeal also.Conclusion[71] On the evidence at trial and in the hearing before me, there is no material orissue that demonstrates that a miscarriage of justice has occurred. On the contrary, theDistrict Court Judge's careful and detailed judgment clearly sets out the evidentialbasis upon which D was convicted, and nothing in his submissions leads me to findthat the Judge was in error or that evidence was interpreted incorrectly or overlooked.[72] The appeal against conviction is dismissed.Approach to sentence appeal[73] This appeal is brought under s 250 of the Act. An appeal against sentence isan appeal against a discretion. An appeal against sentence must be allowed if the Courtis satisfied that, for any reason, there is an error in the sentence imposed and a differentsentence should be imposed.30 The focus is on the final sentence and whether that wasin the available range, rather than the exact process by which it was reached.31Discussion[74] Following the constant and detailed threatening communications to his formerpartner, D travelled to New Zealand to carry out those threats. In addition to theweapons found in his possession, themselves linked to the detail contained in thethreats, D also had 10 litres of petrol. Many of the threats made prior to his arrival inNew Zealand related to burning his former partner. I consider that the Judge wascorrect to categorise the offending as being close to the most serious of its kind.[75] I acknowledge that the starting point of five years and six months'imprisonment is relatively high, given the maximum penalty for threatening to kill orcause grievous bodily harm is seven years. However, that is the maximum penalty fora single charge of threatening to kill or cause grievous bodily harm. Here, there areeight (representative) charges of this type. Bearing this in mind, I consider the Judgewas justified in adopting a starting point near the top of the range for multiple30 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.31 Ripia v R [2011] NZCA 101 at [15].occurrences of threats to kill and cause grievous bodily harm, over a period of about10 months, when there can be no doubt that those threats were intended to be takenseriously and were in the process of being acted upon. The six months uplift(cumulative) for the possession of offensive weapons was moderate and appropriatein the circumstances, given that each charge carries a maximum penalty of three years.[76] Further, the contents of the various psychiatric and psychology reports make itclear that D is someone from whom the community, and particularly his former partnerand her parents, need protection. Accordingly, I find the Judge was justified inimposing a minimum period of imprisonment of three years eight months.32Result[77] The appeal against conviction and sentence is dismissed.Cull JSolicitors:Elvidge & Partners, Napier for the Respondent32 Sentencing Act 2002, s 86(2).