POA v R [2016] NZCA 222

POA v R [2016] NZCA 222 [25 May 2016]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA100/2015[2016] NZCA 222BETWEEN JACOB REECE POAAppellantAND THE QUEENRespondentHearing: 9 March 2016 (further submissions received 4 May 2016)Court: Winkelmann, Peters and Collins JJCounsel: M B Dodds for AppellantI R Murray for RespondentJudgment: 25 May 2016 at 11.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Poa appeals his convictions and sentence in relation to one charge of male assaults female,1 one charge of assault with intent to injure,2 one charge of injuring1 Crimes Act 1961, s 194(b).with intent to cause grievous bodily harm,3 one charge of kidnapping,4 five charges of sexual violation by unlawful sexual connection5 and one charge of sexual violation by rape.6 The convictions were entered at the conclusion of a two-week jury trial in a District Court presided over by Judge Bouchier. Mr Poa pleaded guilty to one other charge of male assaults female at the commencement of his trial.7On 23 January 2015, Mr Poa was sentenced to 15 years' imprisonment, witha seven-year minimum period of imprisonment.8[2] Mr Poa's appeal was filed out of time. He requires an extension of time toappeal, but that is not opposed by the Crown. We grant the extension.The Crown case[3] The complainant, Ms V, is a slightly built young woman,9 who has limited language comprehension and communication skills.10 On the evening of 25 January 2013, Ms V spoke to Mr A, an associate of Mr Poa, Mr Poa himself and another man (Mr B). This conversation occurred outside a hotel. Mr Poa invited Ms V to go for a ride with Mr A, Mr B and himself. Mr B drove them to a rural address where Mr Poa and Mr A lived. Mr B then left the property. Soon after, Mr Poa handed Ms V a can of beer and told her to drink it. Mr Poa then opened another can of beer and when Ms V declined to drink it, Mr Poa poured it over her.Mr Poa then asked Ms V if she wanted to "hook up" with him. Ms V declined thisinvitation. Soon after, Ms V went upstairs to a bedroom occupied by Mr A.[4] A short time before midnight Mr Poa went to Mr A's bedroom with a torch.He grabbed Ms V by her hair and dragged her out of the bedroom head-first down the stairs into his room, saying words to the effect that he wanted her first.2 Section 193.3 Section 189(1).4 Section 209(b).5 Sections 128(1)(b) and 128B.6 Sections 128(1)(a) and 128B.7 Count 1 in the indictment.8 R v Poa [2015] NZDC 1160 at [59] and [61] [Sentencing notes].9 Ms V was 21 at the time of the offending. She is 158 centimetres tall and weighed 45 kilograms. Mr Poa was 42. He is 175 centimetres tall and described in the evidence as strongly built.10 The evidence from a trained speech language therapist was Ms V has the language comprehension and communication skills of a 10 year old.[5] Mr Poa then picked Ms V up and threw her against walls and dropped her onto a mattress on the floor. He did this several times and also launched a barrage of verbal abuse at her. Mr A tried to stop Mr Poa and told Ms V to leave. When Ms V went out of the house Mr Poa followed her and knocked her to the ground. He then began to kick and punch Ms V in various parts of her body. Mr Poa told Mr A that he was going to stab Ms V and throw her in the river. On hearing these words Ms V said she would stay.[6] Mr Poa then dragged Ms V back into his bedroom where he removed herclothes. In doing so, Mr Poa ripped Ms V's bra. Mr Poa then raped Ms V. Soon after, when Mr Poa's penis went limp, he demanded Ms V suck his penis. Mr Poatold Ms V his name was "Jake" and that he was a "Mongrel Mob Notorious".Mr Poa then forced his penis into Ms V's mouth.[7] After a period of time Ms V fell asleep. She woke when Mr Poa punched her in the head. At one stage Ms V felt Mr Poa licking her vagina.[8] Mr A left the property at some time during the night.[9] The following morning Mr Poa made Ms V suck his penis on two occasions. At one stage Ms V tried to leave the property. Mr Poa ran after her and dragged her back into the house where he punched her.[10] At approximately 10.00 am Mr Poa and Ms V hitched a ride where they firstwent to a flat occupied by Mr Poa's daughter. They then went and purchased alcoholfrom a liquor store. Mr Poa assaulted two members of the staff at the liquor store.An associate of Mr Poa's then arrived and drove Mr Poa and Ms V back to the property where Mr Poa lived.[11] A short time after arriving back at the property, Mr Poa demanded Ms V perform oral sex on him. Thereafter Mr Poa took Ms V to a river at the back of the property where they went swimming. When they returned to the house Mr Poa again demanded oral sex from Ms V. After this incident Mr Poa fell asleep. Ms V then left the property and ran approximately one kilometre to a neighbouring address.An occupant of that address drove Ms V to her property where the police were called. Ms V was taken to a police station and then to a health clinic for a medical examination.[12] Ms V was examined by a doctor during the evening of 26 January 2013. The doctor observed around 20 bruises and abrasions on Ms V's arms, legs, face andhands, as well as a graze and redness inside her labia.[13] Forensic evidence relied upon by the Crown included traces of what waslikely to be Ms V's blood on a sheet and pillow case in Mr Poa's bedroom, and traces of what was likely to be Mr Poa's DNA extracted from a vaginal swab taken fromMs V.Mr Poa's case[14] Mr Poa gave evidence. He agreed he met Ms V outside the hotel and that he took her back to his property where he says Ms V removed her clothes and engaged in consensual oral sexual activity with him.[15] Mr Poa admitted assaulting Ms V when he says he caught her rifling through his possessions. Mr Poa told the jury this occurred at about 9.00–9.30 am on the morning after he and Ms V had slept together.[16] Mr Poa denied all other charges. He said there was only one occasion when Ms V performed oral sex on him, but Mr Poa maintained Ms V consented to that event. Mr Poa said Ms V was free to leave his property and that she voluntarily stayed with him at all relevant times.Grounds of appeal[17] Mr Dodds, counsel for Mr Poa, has advanced multiple grounds of appeal. We consider it appropriate to identify the grounds of appeal under the following headings.Issues with jurors[18] Mr Dodds submitted that three jurors either individually or cumulatively caused a miscarriage of justice:(1) A juror who was reported to be having "some difficulty processing information".(2) A juror whose facial expressions appeared to be hostile to Mr Poa.(3) A juror who said she would not be back after Mr Poa disrupted the proceedings.Trial Judge's conduct[19] In the second ground of appeal issue is taken with Judge Bouchier warningMr Poa in the absence of the jury that she knew him and would not "take any shit from" him.[20] Issue is also taken with the way in which Judge Bouchier responded to an enquiry by Mr Dodds about the adequacy of one of her question trails.Disruptions during the hearing[21] The third ground of appeal is based upon the way Judge Bouchier declined to stop Mr Poa's trial after he had disrupted the proceedings. There were also incidentsin which Mr Komene, a man whose name features in the trial, came into the courtroom. Issue is also taken with the way in which the Judge responded to another man entering the courtroom in a disruptive way.Crown witness — Ms Connon[22] In the fourth ground of appeal issue is taken with the way Judge Bouchier elected not to give a specific direction to the jury regarding the evidence of Ms Connon.Mode of evidence[23] The fifth ground of appeal concerns Judge Bouchier's ruling that a Crownwitness, Mr Kumar, could give evidence from behind a screen. Mr Poa could not see Mr Kumar through the screen.Remand evidence[24] In the sixth ground of appeal issue is taken with Judge Bouchier's trial ruling allowing the jury to hear evidence that Mr Poa was in custody awaiting trial.Section 44 of the Evidence Act 2006[25] The seventh ground of appeal is based on a ruling made by Judge Bouchierdeclining Mr Dodds' application to cross-examine Ms V as to her sexual relationship with Mr Komene.Propensity rulings[26] In the eighth ground of appeal issue is taken with three trial rulings in whichJudge Bouchier allowed the Crown to produce evidence of some of Mr Poa'sprevious convictions, and details of two of those convictions, as propensity evidence.[27] Issue is also taken with the way the Judge instructed the jury in her summing-up on propensity evidence relating to some of Mr Poa's previousconvictions.Other grounds[28] A ninth ground of appeal alleges Judge Bouchier misdirected the jury about the elements of the sexual violation charges. This ground of appeal was not addressed by Mr Dodds during the hearing before us. We have looked at the issuesraised in Mr Dodds' written submissions concerning this ground of appeal. We areof the view that both the question trails and Judge Bouchier's summing-up correctly explained the elements of the sexual violation charges.[29] A tenth ground of appeal concerning Judge Bouchier's directions to the juryabout the effect of Mr Poa giving evidence was abandoned by Mr Dodds.[30] Mr Dodds advised us that the seventh and eighth grounds of appeal were the primary grounds upon which Mr Poa relied. We will, however, briefly address the first six grounds of appeal canvassed by Mr Dodds during the hearing before us and explain why those grounds of appeal have no merit.[31] After the appeal was heard it became apparent to us that we had not receivedall of Judge Bouchier's rulings concerning the admissibility of Mr Poa's previousconvictions. We obtained a copy of a further ruling made by Judge Bouchier on 10 December 2014 and sought further submissions on that ruling and Judge Bouchier's propensity directions. We received Mr Dodds' supplementary submissions on 26 April 2016 and the Crown's supplementary submissions on 4 May 2016.Issues with jurors[32] As noted above, Mr Dodds says that three events involving jurors caused justice to miscarry in this trial.[33] First, on the morning of 2 December 2014, which was the second day of the trial, a juror apparently said to a court staff member that he was having "some difficulty processing information".[34] Second, by this time, Mr Poa and Mr Dodds were also concerned that another juror was observed to be talking to a fellow juror when the recording of Ms V'sinterview with the police was played to the jury. Mr Dodds also advised Judge Bouchier that the talking juror was casting hostile looks in the direction of Mr Poa.[35] Judge Bouchier dealt with Mr Dodds' concerns about both jurors in a rulingissued on 2 December 2014. Judge Bouchier concluded that there was insufficient evidence to justify questioning the jurors or to discharge either of them.[36] The third incident involving a juror occurred on 11 December 2014 towards the end of the trial, when Mr Poa became angry when his daughter, who was a witness for Mr Poa, was being re-examined by Mr Dodds. A female juror wasreported to have said words to the effect that "she wasn't coming back". It wouldappear however, that following an adjournment which was taken straight after Mr Poa's outburst, the juror said to court staff that she was happy to continue.In these circumstances, Judge Bouchier concluded that it was not appropriate to inquire into whether or not there were grounds for discharging the juror.[37] The criteria for discharging a juror is prescribed in s 22 of the Juries Act 1981. The relevant test provides that the trial judge may discharge a jurorif "a juror is incapable of performing, or continuing to perform, the juror's duty as ajuror in the case ".11 The threshold to discharge a juror is triggered if there is a real risk that allowing a juror to continue would jeopardise the fairness of the trial to either side, or render the verdict seriously vulnerable.12[38] In the present case, Judge Bouchier compared the actions of the three jurors to other incidents involving jurors13 to determine whether the ability of the jury to consider the case impartially had been compromised. Judge Bouchier concluded that the concerns about the three jurors raised by Mr Dodds did not warrant any inquiry under s 22 of the Juries Act.[39] In our assessment, the approach taken by Judge Bouchier was appropriate in the circumstances of this case. On the information presented, there was no sound basis for Judge Bouchier to have inquired into whether or not any of the jurors were incapable of continuing to be jurors. On the contrary, the evidence demonstrated that allowing all three jurors to remain on the jury would not jeopardise the fairness of the trial for either side or render the verdict "seriously vulnerable".1411 Section 22(2)(a).12 R v M (1991) 7 CRNZ 439 (CA) at 442.13 For example Taylor v R (1996) 14 CNRZ 334 (CA) at 350; and R v Ryder (No 3) HC Christchurch T68/94, 28 September 1994 at 3.14 R v M, above n 12, at 442.Trial Judge's conduct[40] There are two parts to the second ground of appeal. The first is a complaint that Judge Bouchier acted unfairly when she said to Mr Poa on the morning of the second day of the trial, in the absence of the jury: Mr Poa, if you don't remember me, I sure remember you from Otahuhuand Manukau days and I am making sure that you are aware that I will take no shit in this courtroom, so you behave yourself.[41] The second part of the second ground of appeal concerns the way Judge Bouchier is said to have spoken to Mr Dodds after she had completed her summing-up.[42] At the conclusion of Judge Bouchier's summing-up, Mr Dodds questioned the Judge about whether a legal ingredient had been omitted from the Count 4 directions and question trail. After an exchange with Mr Dodds in which she dismissed his concerns, Judge Bouchier invited the jury to retire. Thereafter, Judge Bouchier realised Mr Dodds had raised a valid concern. She got the jury back into the courtroom and explained Mr Dodds was right and that she needed to correct an error in one of the question trails.[43] Mr Dodds argued Judge Bouchier's comments to Mr Poa on the second dayof the trial could have caused Mr Poa to believe that he would not receive a fair trial as the Judge was biased against him. Mr Dodds clarified however that he did not allege that the Judge was biased against Mr Poa or that her warning to him causedMr Poa's outbursts later in trial. He accepted that this ground alone could not lead usto conclude there had been a miscarriage of justice. Mr Dodds' acknowledgement in relation to this issue was appropriate. Judge Bouchier's comments fell well short ofdemonstrating a lack of neutrality on her part15 or apparent bias.16[44] There is no basis for concluding there was a miscarriage of justice because of these two incidents. In our view the two incidents, when viewed individually or cumulatively, did not constitute a basis for suggesting Judge Bouchier prejudiced15 R v Poutawa [2009] NZCA 482 at [10].16 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].Mr Poa's right to a fair trial. The first incident occurred in the absence of the jury and involved Judge Bouchier engaging in robust trial management. As it transpired, her fears about Mr Poa being likely to misbehave were well founded. The second incident was equally innocuous because Judge Bouchier realised her error and toldthe jury Mr Dodds' concerns about the question trail were valid.Disruptions to the hearing[45] There appear to have been three disruptions during the hearing. The first occurred on 10 December 2014 when a prospective defence witness, Mr Komene, entered the courtroom in an intoxicated and dishevelled state.[46] The second incident also occurred on 10 December 2014 and involved Mr Wikaira, an associate of Mr Poa, entering the courtroom. Judge Bouchier directed Mr Wikaira be removed from the courtroom.[47] The third incident occurred on 11 December 2014 when Mr Poa becameangry during the course of Mr Dodds' re-examination of Mr Poa's daughter.[48] There was no evidence the jury knew who Mr Komene was. There is no suggestion Mr Wikaira's presence prejudiced Mr Poa's trial. Mr Poa's outburst washandled appropriately by Judge Bouchier at the time. Mr Poa apologised to the Judge. Nothing else was required.[49] The third ground of appeal falls well short of the threshold for a potential miscarriage of justice as explained by this Court in R v Burney.17Crown witness — Ms Connon[50] Ms Connon was at the flat occupied by Mr Poa's daughter when Mr Poa and Ms V arrived on the morning of 26 January 2013. Ms Connon's evidence was thatshe overheard Mr Poa's daughter ask Ms V if she wanted to leave and that Ms V replied that "she didn't want to go [because] she didn't want to get hurt".17 R v Burney [1989] 1 NZLR 732 (CA) at 134.[51] Counsel for the Crown sought further detail:Q. When [Ms V] was saying that she didn't want to get a hiding, did she say anything about who she didn't want to get a hiding from?A. Well she didn't say but I had the feeling that something was goingon between those two.Q. Why did you have that feeling?A. I've seen [Mr Poa] get a bit violent at one stage.[52] Mr Dodds asked Judge Bouchier to immediately direct the jury to disregard the last answer. Judge Bouchier then issued her fourth ruling, in which she declined to accede to Mr Dodds' request. Judge Bouchier reasoned that a general directionregarding sympathy and prejudice would suffice because the jury would hear evidence of Mr Poa having engaged in far more serious violence during the course of the trial.[53] Mr Dodds then cross-examined Ms Connon and put to her that she had lied about seeing Mr Poa behave violently on a previous occasion. Ms Connon said she did not know what to say in response to that question.[54] Ms Connon was re-examined and further details of Mr Poa having behaved violently in the presence of Ms Connon emerged. Ms Connon said that she had previously been pushed over by Mr Poa and that he had yelled at her.[55] In our assessment, Judge Bouchier cannot be criticised for declining to givethe jury a specific direction to disregard Ms Connon's comments about Mr Poahaving previously been violent.[56] Ms Connon's evidence about Mr Poa's prior violence was of no consequencein the context of a trial in which:(1) Mr Poa pleaded guilty in the presence of the jury to violently assaulting Ms V on the night of 25 January 2013;(2) evidence was produced of Mr Poa's history of earlier violentoffending; and(3) the allegations by Ms Connon that Mr Poa had previously been violent were comparatively minor.[57] As it transpired, Mr Poa did not comment on Ms Connon's allegations whenhe gave evidence and neither counsel mentioned Ms Connon's allegations in their closing addresses to the jury. Both trial counsel obviously considered Ms Connon'sevidence to be of little significance.[58] Furthermore, Judge Bouchier specifically referred to allegations about Mr Poa's prior violence when instructing the jury not to be influenced by prejudice.In the context of this case, Judge Bouchier's approach was the correct way to deal with Ms Connon's evidence.Mode of evidence[59] The fifth ground of appeal concerns Judge Bouchier's decision to allow Mr Kumar to give evidence from behind a screen, which prevented him from being seen by Mr Poa. Mr Kumar was an employee of the liquor store visited by Mr Poa and Ms V on 26 January 2013. The Crown case was that Mr Poa assaulted Mr Kumar and one other member of staff in the liquor store. Mr Kumar's evidencewas supported by CCTV footage taken inside the liquor store.[60] We can see no fault in Judge Bouchier's decision to allow Mr Kumar to givehis evidence from behind a screen. The criteria set out in ss 103 and 105 of the Evidence Act 2006 to allow a witness to give evidence by alternative modes were clearly established.[61] Mr Dodds' primary concern in relation to this ground of appeal was the factthe solid screen used did not allow Mr Poa to see the witness.[62] As this Court explained in Pearce v R, the alternative mode of evidence provisions of the Evidence Act do not derogate from the requirement that in acriminal trial, whatever mode of giving evidence is adopted, the defendant will normally be able to see and hear the witness.18 It was stated: "If screens are to beused this will require one-way glass or mirrored screens."19[63] In the present case, the only screen available in the District Court was deficient as it did not allow Mr Poa to see Mr Kumar give his evidence. This was unfortunate. However, Mr Kumar played a very minor role in this trial. His evidence was not subject to extensive cross-examination or challenge. The deficiency of the witness screen used in this case did not cause a miscarriage of justice.Remand evidence[64] The sixth ground of appeal alleges Judge Bouchier erred when she allowed counsel for the Crown to cross-examine a defence witness, Mr Morris-Stewart, about the fact he had met Mr Poa while Mr Poa was in custody awaiting trial. The cross-examination of Mr Morris-Stewart occurred after Mr Poa had explained to the jury he had been in custody in relation to the charges.[65] The Crown applied to cross-examine Mr Morris-Stewart about meeting Mr Poa when he was in custody to lay the foundation for the submission that they had colluded when preparing their evidence.[66] The cross-examination of Mr Morris-Stewart concerned a relevant issue, namely, whether or not Mr Poa and Mr Morris-Stewart had concocted their evidence. In the context of this trial, allowing the Crown to question Mr Morris-Stewart about having met Mr Poa when he was in custody could not have had any prejudicial effect on the proceedings.[67] In any event, any possible prejudicial effect arising from the evidence that Mr Poa was in custody was more than adequately dealt with by Judge Bouchier when she instructed the jury in the following way:18 Pearce v R [2012] NZCA 596 at [40].19 At [40].I have given you warning about prejudice before and I am going to give another one very shortly as well and also, it has come out that the defendant has been in custody during the trial. This has come out in the cross-examination of Mr Cody Morris and through a couple of other ways. He was not in custody because he was serving a sentence, he was in custody on what is called remand, awaiting trial, but certainly not a sentenced prisoner which means that if he is on remand, he is still innocent until proven guilty, whereas if a person is a sentenced prisoner, they have been found guilty and sentenced.Section 44 of the Evidence Act[68] During the trial an application was made under s 44 of the Evidence Act to allow Mr Dodds to cross-examine Ms V about her having had a sexual relationship with Mr Komene, who was a former Mongrel Mob member. Mr Dodds sought to cross-examine Ms V on this relationship to advance three points:(1) that Ms V was attracted to Mr Poa because of his gang status;(2) to challenge Ms V's claims that she was not a good friend ofMr Komene; and(3) to challenge Ms V's evidence that she did not associate with gangs.[69] Judge Bouchier declined the application to cross-examine Ms V about her prior sexual relationship with Mr Komene.[70] The relevant provisions of s 44 of the Evidence Act provide:44 Evidence of sexual experience of complainants in sexual cases(1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.(2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.(3) In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.[71] The overriding issue in relation to s 44(3) of the Evidence Act is whether the proposed cross-examination goes so directly to a matter at issue in the trial that to exclude it would be contrary to the interests of justice. This is a high threshold.20[72] This Court explained in Nguyen v R:21The protective purpose of s 44 and its statutory predecessor is well established by decisions of this Court. The direct relevance test is a strong one. There must be demonstrated a direct link between the disputed evidence and a matter at issue at trial. It must further be demonstrated that the evidence is of such significance that it would be contrary to the interests of justice to exclude it. In examining this second aspect, regard must be had to the right of the accused to offer an effective defence.(Footnotes omitted).[73] Judge Bouchier was correct to decline the application because the test under s 44(3) of the Evidence Act was not met. The proposed cross-examination had nofactual connection to Mr Poa's defence at trial. There was no direct link between theintention to cross-examine Ms V about her prior association with Mr Komene and whether or not Ms V consented to the sexual acts perpetrated by Mr Poa. As the Judge said, what Mr Komene and Ms V may have done together is completely removed from the question of whether Ms V consented to sexual acts with Mr Poa.[74] The ruling of Judge Bouchier did not, however, preclude Mr Dodds from cross-examining Ms V about her alleged association with gangs and her alleged friendship with Mr Komene. As it transpired, Ms V did acknowledge in cross-examination a limited degree of association with a gang, and with Mr Komene.Propensity evidence and directions[75] There are two limbs to the eighth ground of appeal. First, Mr Poa challenges three trial rulings in which Judge Bouchier allowed the Crown to produce evidenceof some of Mr Poa's previous convictions as propensity evidence and then allowedthe Crown to cross-examine Mr Poa on matters arising from two of his convictions.20 See for example Cant v R [2013] NZCA 513 at [50]; Nguyen v R [2011] NZCA 8, [2011] 2 NZLR 343 at [14]; and R v Morrice [2008] NZCA 261 at [28].21 Nguyen v R, above n 20, at [14]. See also B v R (SC12/2013) [2013] NZSC 151, [2014] 1 NZLR 261 at [53].[76] Second, Mr Poa challenges the way Judge Bouchier directed the jury on howthey should consider the evidence of Mr Poa's previous convictions.Admissibility rulingsRuling 6[77] In Trial Ruling 6, Judge Bouchier allowed the Crown to admit evidence offive of Mr Poa's previous convictions. There was one conviction in 2005 forthreatening behaviour likely to cause violence, two convictions in 2003 and 2002 for threatening to kill or do grievous bodily harm, one conviction in 2001 for threatening to kill or do grievous bodily harm verbally, and one conviction in 1999 for speaking threateningly. In allowing the evidence of these convictions to be produced, Judge Bouchier applied s 43 of the Evidence Act by following a three-step process.[78] First, she identified the issue in dispute, namely whether Mr Poa had threatened Ms V with serious harm and/or death in order to coerce her into sexual acts.[79] Second, Judge Bouchier assessed the probative value of the evidence of Mr Poa's previous convictions by reference to the nature of the issue in dispute22 and some of the factors in s 43(3) such as the frequency and number of previous convictions, the connection in time between the previous convictions and the issue in dispute, and the similarities between the previous convictions and the issue in dispute.[80] Third, Judge Bouchier assessed whether the evidence of Mr Poa's previousconvictions was likely to unfairly predispose the jury against him and whether the jury would tend to give disproportionate weight to this evidence in reaching its verdict.23 In concluding the evidence would not unfairly predispose the jury against Mr Poa and that the jury would not tend to give disproportionate weight to this evidence, Judge Bouchier referred to the volume of prejudicial evidence already presented at the trial without objection. That evidence included references to22 Evidence Act, s 43(2).23 Section 43(4).Mr Poa's gang affiliations, his distinctive tattoos,24 drugs, and evidence of other acts of violence including his admission in front of the jury that he had assaulted Ms V on 25 January 2013.[81] We agree in general with the approach taken by Judge Bouchier. Shecorrectly concluded the evidence of Mr Poa's previous convictions for threateningbehaviour were admissible as propensity evidence.[82] In our view, the evidence of Mr Poa's previous convictions for threateningbehaviour were relevant to an issue in dispute, namely whether Mr Poa threatened Ms V with violence and/or death in order to coerce her into performing sexual acts. We are also satisfied the previous convictions had probative value because of the frequency of the previous convictions and the similarities between those convictions and the issue in dispute; the convictions in question tended to prove that Mr Poa used threats to obtain what he wanted. We are also satisfied that the evidence was not unfairly prejudicial because in the context of the trial the evidence was insignificant. The jury had already been told much more damning things about Mr Poa withoutprotest. For these same reasons, which align with the Judge's, we are sure that thejury would not have given disproportionate weight to the evidence in question.Ruling 72001 conviction[83] Issue was also taken with Trial Ruling 7, in which Judge Bouchier gave the Crown permission to cross-examine Mr Poa about factual details concerning Mr Poa's 2001 conviction for threatening to kill or do grievous bodily harm.[84] The evidence relating to the 2001 conviction concerned the way Mr Poa threatened a female at a hotel. The evidence was that Mr Poa said to the 2001complainant "you fuckin' bitch, I'll kill you" and "you're dead, you're dead. I'll shoot you", and that he asked her if she wanted to "suck [his] cock".2524 Mr Poa's tattoos included a Mongrel Mob tattoo on his face and a tattoo on his lower abdomentelling viewers of that tattoo to suck his penis in very crude terms.25 Later, the Crown also sought to rely on evidence that at his 2001 sentencing Mr Poa asserted he would not have offended in the way he did because he had turned over a new leaf.[85] In reaching her conclusion in Ruling 7, Judge Bouchier followed the three-step approach to s 43 of the Evidence Act that she followed in Ruling 6.[86] First, Judge Bouchier again identified the issue in dispute, namely whether Mr Poa had threatened Ms V with serious physical harm and/or death in order to coerce her into sexual acts.[87] Second, Judge Bouchier assessed the probative value of the evidence by evaluating the connection in time between the earlier events and the issue in dispute, the similarities between the earlier incidents and the issue in dispute, and the frequency of the earlier incidents.[88] Third, Judge Bouchier assessed the factors set out in s 43(4) of the Evidence Act relating to prejudice and disproportionate weight being placed on the evidence in issue by the jury. Judge Bouchier undertook a similar process of reasoning to that we have set out in [80] when she concluded that the details of the 2001 conviction could be adduced by the Crown.[89] We take no issue with Judge Bouchier's conclusion that the Crown was ableto cross-examine Mr Poa on the details of his 2001 conviction.2007 conviction[90] Ruling 7 also dealt with an application by the Crown to adduce factual details about a 2007 conviction. That conviction was entered after Mr Poa stabbed a victim with a knife and attempted to dispose of the weapon. The Crown sought to cross-examine Mr Poa about the details of that conviction for two purposes. First, the Crown said the 2007 conviction was relevant as it showed Mr Poa had a propensity to either threaten or actually stab his victims; he had threatened to stabMs V. Second, the Crown said Mr Poa's attempt to dispose of the knife used in the2007 case was similar to his attempts to dispose of evidence in the present case. The Crown submitted Mr Poa cleaned up his home before the police could conduct a forensic examination of the scene.[91] In the final two paragraphs of Ruling 7, Judge Bouchier said:The threat and the actual act of stabbing of course renders there to be differences here. But it is the behaviour of the defendant which the Crown seeks to examine on; his propensity to act and think in a certain way, the propensity to act by either threatening or here stabbing a person with a knife, and appearing to think that this kind of behaviour is acceptable and able to be done. And his resorting to such actions. So whilst there are differences, I am of the view here that the extent of the similarity is such regarding thedefendant's propensity to act and think in a certain way, to permitcross-examination on that.Is it [likely] to [unfairly] predispose the fact finder against the defendant and will the fact finder give disproportionate weight in reaching a verdict to this evidence? Unfortunately I am of the view that here this particular action is likely to unfairly predispose the fact finder against the defendant, and they may well give disproportionate weight in reaching a verdict to this evidence, and so accordingly I am of the view that the Crown should not be able to cross-examine on that particular piece of evidence.[92] We understand Judge Bouchier's conclusion prohibited the Crown fromreferring to Mr Poa's attempt to destroy evidence relating to his offending in 2007.We also understand Judge Bouchier decided in Ruling 7 that the Crown could not refer in any way to the 2007 incident in which Mr Poa stabbed his victim. Our reading of the cross-examination of Mr Poa led us however to make further inquiries as to exactly what Judge Bouchier had ruled in relation to the admissibility of the evidence relating to Mr Poa's 2007 conviction. Those inquiries revealedJudge Bouchier had made a further ruling on 10 December 2014 concerning thedetails of Mr Poa's 2007 conviction. We have now had the opportunity to considerthe transcript of the relevant submissions of counsel during the trial, Judge Bouchier's 10 December 2014 ruling, and the supplementary submissions of counsel in this Court relating to Judge Bouchier's ruling on 10 December 2014.10 December ruling[93] During her cross-examination of Mr Poa, Ms O'Connor, counsel for the Crown, applied for leave to cross-examine Mr Poa about the sentencing notes ofJudge Lance relating to Mr Poa's 2001 conviction for threatening to kill or do bodily harm. Ms O'Connor also renewed her application for leave to cross-examine on thedetails of Mr Poa's 2007 conviction for stabbing.[94] The application relating to Judge Lance's 2001 sentencing notes arosebecause during his cross-examination Mr Poa said he had received significantsupport following his last release from prison and that the existence of that support meant it was less likely he would have committed the offences with which he had been charged. The Crown wanted to refute that suggestion by referring to Judge Lance's 2001 sentencing notes in which it was explained Mr Poa was sentenced to a 12-month period of supervision in order to give him the opportunity to benefit from the support and assistance offered by a non-custodial sentence. In essence, the Crown wanted to submit to the jury Mr Poa had previously been given support and that it had not deterred him from offending on subsequent occasions. Judge Bouchier allowed the Crown to cross-examine Mr Poa about the terms of the 2001 sentence. Mr Dodds has not challenged that aspect of Judge Bouchier's rulingof 10 December 2014 and we need not refer to it further.[95] The renewed application to cross-examine Mr Poa about the details of his 2007 conviction arose after Mr Poa said in cross-examination that he had areputation for closing down "drug shops". The relevant portion of the cross-examination reads as follows:Q. Do you think that you had some status?A. Well I can say I had a bit of a status.Q. What sort of status did you have?A. I had a reputation of fighting, um, being a food fighter, um, I had a reputation of going around and, um, closing down drug shops, um, mainly P shops. I was quite known going around and shutting them down. And as a person that does that there was a bit of a status around wherever you maybe.Q. Well being a bit of a vigilante superhero?A. Well if you want to put it like that but, ah, I didn't think I was asuperhero.[96] Soon after Mr Poa gave this evidence, the Crown renewed its application to cross-examine Mr Poa about the details of his 2007 conviction. The basis of theCrown's application was explained by Judge Bouchier in the following way in her ruling on 10 December 2014: Further, the defendant has mentioned that he has shut down drug houses thus re-opening the 2007 conviction which the Court ruled that the Crown was not permitted to cross-examine on the facts of that conviction.In particular, that he stabbed the victim at that stage. The pedestrian, as [he] is referred to in the summary of facts, was asked whether he had any cannabis and when he said he did not, the defendant took out a knife and stabbed him.He has painted himself, in the evidence he has given, as some form of vigilante acting against drugs. The Crown puts it that this was some form of stand-over for drugs, not as the defendant is trying to portray himself and now seek to be able to cross-examine this to answer what he is professing in his evidence before the Court.[97] Judge Bouchier believed the Crown's application to cross-examine Mr Poa about the details of his 2007 conviction required her to apply s 43 of the Evidence Act.[98] Judge Bouchier accordingly identified what she considered was the issue indispute when she said that the details of the 2007 conviction were "relevant to[Mr Poa's] veracity". We interpret this to mean Judge Bouchier concluded that whenMr Poa said he had a reputation for closing down "drug shops" he was not telling thetruth, and that the details of the 2007 conviction demonstrated he was not acting in the public interest because he had used extreme violence in the past when trying to extract drugs from his victim.[99] Having identified what she believed was the issue in dispute, Judge Bouchier chose not to assess the probative value of this evidence by taking into account the nature of the issue in dispute or the factors set out in s 43(3) of the Evidence Act. Instead, Judge Bouchier appears to have moved to the third step in s 43 of the Evidence Act. Judge Bouchier said:Whilst having ruled in the past that the 2007 conviction that the [prejudice] outweighed the probative value, now the defendant again himself has squarely raised the issue again. The Crown must, in my view, be able to put to the defendant the facts of that [2007] conviction in the small portion which the Crown have originally outlined regarding the stabbing. They did not lead the defendant into that. He volunteered it. He knew full well about the facts of that because it was before the court when it was argued. he knew of the possibility of the prejudice and exposed himself to it, it can hardly now [be] said that it is illegitimate prejudice. I rule the Crown may question him on the matters they seek to.[100] Before the Crown cross-examined Mr Poa about the details of the 2007 conviction, Mr Poa answered the following question:Q. No Mr Poa, you are bringing it up, just like you brought up that youwhat, were a vigilante that go around trying to shut down thedrug trade, correct?A. Um I'll correct that for you Miss, what I was meaning to say alongthose lines is that I only did things like that when it was involved with my family, my daughter. The only reason that I did that occasionally at times because there was drugs offered to my daughter from this person that I allegedly assaulted. And that was brought out in the Courts.[101] A few moments later, Ms O'Connor referred to the details of Mr Poa's 2007conviction in the following way:Q. I hadn't put anything to you at that stage, but you are referring to aren't you knowing I'm going to ask you about your conviction in 2007 where you saw a person walking on the road, asked if he had any cannabis, and when he replied that he did not get involved indrugs, "Poa took a knife that he had in the car with him, got out and approached the victim, after approaching the victim and grabbing him at the same time Poa thrust the knife into the right-hand side ofthe victim's stomach, who then pulled it back out, ran back to hisvehicle, got in and drove off."A. So does that make me I'm guilty for the convictions that I'm goingup for, the allegations? I served my time for that and I just wanna say that I did that because he's a well-known drug dealer He offered drugs to my daughter and that's what I did as a father, I wentdown there and that was my way of teaching him a lesson. And I pleaded guilty to my charges. I stick my hand up for what I knowI've done wrong.[102] We disagree with the way in which Judge Bouchier applied s 43 of the Evidence Act to grant the Crown leave to cross-examine Mr Poa about the details of his 2007 conviction.[103] In our assessment, few of the factors referred to in s 43(3) of the Evidence Act were engaged by the Crown's application. In particular:(1) There was nothing to suggest any degree of frequency or recurring pattern about the circumstances of the 2007 conviction.(2) There was no similarity between the circumstances of the 2007 conviction and the allegations faced by Mr Poa. In our assessment, there is a vast difference between the evidence that Mr Poa stabbed someone in the stomach after asking them if they had cannabis compared to the circumstances the Crown alleged when Mr Poa offended in the way stated by Ms V.[104] Although we believe Judge Bouchier misapplied s 43 of the Evidence Act inher ruling of 10 December 2014, her error was not relevant because the Crown'sapplication should have been made and dealt with under s 41 of the Evidence Act.[105] When Mr Poa volunteered that he had "status" as a person who shut downdrug shops he was offering evidence of his propensity to act in a laudable and socially responsible fashion. In doing so, Mr Poa opened the door to the Crown to apply under s 41(2) of the Evidence Act to adduce evidence that he in fact had disreputable propensities. Section 41 of the Evidence Act provides:41 Propensity evidence about defendants(1) A defendant in a criminal proceeding may offer propensity evidence about himself or herself.(2) If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about that defendant.(3) Section 43 does not apply to propensity evidence offered by the prosecution under subsection (2).[106] The purpose in allowing the Crown to counteract evidence by a defendant about his or her propensity to act in a laudable and socially responsible fashion is toensure the jury is not given the wrong impression about the defendant's character.Critically, s 43 of the Evidence Act does not apply to propensity evidence offered by the Crown under s 41(2) of the Evidence Act. Nevertheless, before allowing the Crown leave to adduce evidence under s 41(2) of the Evidence Act the Court must be satisfied the evidence in question passes the thresholds for admissibility prescribed by ss 7 and 8 of the Evidence Act.2626 Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [18]–[20].[107] We are satisfied the evidence of the details of Mr Poa's 2007 conviction wasable to be adduced by the Crown under s 41(2) of the Evidence Act. In reaching this conclusion we have determined:(1) First, Mr Poa volunteered he had "status" as a person who shut downdrug shops because he wanted the jury to believe he had a propensity to act in a laudable and socially responsible way, and that Ms V wasattracted to him because of his "status".(2) Second, the evidence the Crown wished to adduce aimed to rebut the evidence Mr Poa had volunteered and was relevant to the jury'sassessment of whether or not Mr Poa had a propensity to act in a laudable and socially responsible way.(3) Allowing the Crown's application would not have had an "unfairlyprejudicial effect on the proceeding"27 because the Crown's rebuttalpropensity evidence was offered to correct the misleading impression Mr Poa was trying to create through his evidence.[108] We have borne in mind the requirements of s 8(2) of the Evidence Actrelating to Mr Poa's right to offer an effective defence. In our assessment, that rightwas not compromised because allowing the prosecution's application promoted fairness in the trial by alerting the jury that Mr Poa's assertions about his laudableand socially responsible propensities were questionable. In any event, as we explainin [112], and [123] to [126], the evidence about Mr Poa's previous convictions wasnot significant in the overall context of the trial.Propensity direction[109] The second aspect of the eighth ground of appeal concerns the adequacy ofJudge Bouchier's directions to the jury on how they should consider the evidence of Mr Poa's prior convictions.[110] In her summing-up, Judge Bouchier said:27 Evidence Act, s 8(1)(a).Now then, there has also been evidence offered that the defendant has convictions for; threatening to kill and do grievous bodily harm and that he stabbed a person in 2007, that he was sentenced in 2001 for threatening to kill a person having yelled to her, "Fuckin bitch, I'll kill you. You're dead, you're dead. I'll shoot you. Do you want to suck my cock?" and on sentence for that offence, it was submitted that he had significant help and support in the community and that he also was sentenced [to] supervision with helpful conditions by the Judge. This evidence has been offered for the following reasons:(a) The Crown suggest to you that these pieces of evidence show that the defendant was a person who has a tendency to act in a certain way. That he has a tendency to behave in a threatening way on a number of previous occasions and in fact, has convictions for it, including for threatening a woman. The person at the hotel was a female. Saying a sexual reference to her, "Suck my cock."(b) Further, the Crown submit to you that the evidence that he stabbed a person shows a tendency to use a knife violently. That is what the Crown submits to you. Also, he said here that he would not have committed these offences, because he was being supervised by a psychologist, a probation officer, had a job and [had] turned over a new leaf, but the Crown submit that what the Judge said on sentence in 2001 is offered to show that he [has] already said these things in the past. That he has had support in place at the time and the Judge gave him supervision, but he still went on to offend again, despite having the oversight of supervision with conditions.The defence contend that this evidence does not support any tendency to behave in a threatening way or a tendency to use a knife violently and further, although given a chance in 2001, people can make mistakes in their lives and go on to turn over a new leaf. It is over to you to give what weight you will give to this evidence and whether it establishes the tendency that the Crown contends. If you do not consider that it establishes that tendency the Crown contends, then you ignore it. Please remember also that these pieces of evidence are only a small part of the totality of the evidence that you have heard in this trial and you must consider the whole of the evidence and not just small parts of it.[111] Soon after giving this direction, Judge Bouchier gave the jury a direction about sympathy and prejudice. Judge Bouchier said:So then I come to sympathy and prejudice. In every criminal trial, feelings of sympathy and prejudice will be aroused and I generally do not point them out, but in this particular trial, there have been a considerable number, so I need to. You have heard a number of matters that you may consider are prejudicial to the defendant. That he was involved in a gang, the taking of drugs have been mentioned, previous violence has been mentioned, CCTV footage showing him hitting or slapping a person in the liquor store, that he has these convictions for threatening to kill and do grievous bodily harm andhe says [he has] done time for the things that he has done, plus of course, the allegations of what Ms [V] says of what he has done to her you may well find distasteful. Sympathy may have been aroused for the complainant, but you are the Judges and a Judge can never allow prejudice against or sympathy for any defendant or complainant or witness to influence the decision in any way. You must judge this trial coldly and clinically on the evidence that you have heard and it is most important that you do so. It is important in every trial, but in this trial, the issues of sympathy and prejudice are rather more starkly outlined than they are in many others, so please do not forget this.[112] These directions were given in the context of a trial in which the Crown hadplaced virtually no weight on the evidence of Mr Poa's previous convictions in itsvery comprehensive closing address.28 In her closing address, Ms O'Connor referred to the evidence of Mr Poa's previous convictions in the following way:I put to him the threats to kill that he had been convicted of in the past.Why? How was that relevant? Because it's evidence that shows that he hasa tendency to make threats like that. If a person has done those things previously, you may think that it can make it more likely that they have done it on this occasion. That is something that he does. Threatens to kill or to cause really serious harm. That is the relevance of that evidence.That was the extent of the Crown's reliance on Mr Poa's previous convictions.[113] Judge Bouchier's directions were also made in the context of Mr Dodds'closing address in which he explained that just because Mr Poa had previous convictions and was a person with a bad reputation, this did not mean he was a"sexual abuser". Mr Dodds commenced his closing address by reminding the jury Mr Poa had pleaded guilty to assaulting Ms V on the evening of 25 January 2013 andthat he was the sort of person who admitted when he had done wrong. Mr Dodds'penultimate remarks to the jury were to the effect that they should not convict Mr Poa simply because of the bad things he had done previously in his life.[114] In Mahomed v R, all members of the Supreme Court agreed that there was noscope for a "one-size-fits-all" propensity direction and that a template direction was likely to confuse rather than enlighten a jury. 29 McGrath and William Young JJ, who28 The Crown's closing address comprises 41 pages of the Case on Appeal.29 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [17] and [94].comprised the minority in Mahomed, identified in a judgment delivered by William Young J the following three requirements of a propensity direction:30When giving a propensity evidence direction a judge should:(a) Identify the evidence in question and explain why it has been led and the legitimate respects in which it might be taken into account by the jury (b) Put the competing contentions of the parties.(c) Caution the jury against reasoning processes which carry the risk of unfair prejudice associated with the propensity evidence [115] The majority of the Supreme Court did not expressly adopt the three-limb requirements of a propensity direction identified by William Young J. The majority said:31We would prefer to say no more than we have on the general question of jury directions in propensity cases addressed by William Young J in his reasons. It is preferable to deal with particular problems and issues as and when they arise.[116] All members of the Supreme Court in Mahomed agreed that a trial judge mayneed to consider a "proper use" direction to guard against illegitimate reasoningstemming from the introduction of propensity evidence.32[117] When giving her propensity direction, Judge Bouchier clearly addressed the first two elements of a propensity direction explained in the judgment of William Young J in Mahomed, which we have set out in [114]. Issue is only taken with the third element.[118] The key issue in this case therefore involves two questions. First, was Judge Bouchier required to give the jury a direction that they must not engage in illegitimate reasoning in concluding that because Mr Poa had previous convictions he was therefore guilty of the charges he faced? Second, if Judge Bouchier was required to give a warning of this nature, did she do so adequately?30 At [95].31 At [17].32 At [7] and [95].[119] A warning that a jury should not improperly use evidence of a defendant'sprior convictions when determining whether he or she is guilty reflects the basic tenet that a defendant cannot be convicted on one crime solely by reason of the fact that he or she has committed some other crime.33[120] In our assessment, it would have been desirable for Judge Bouchier to have clearly warned the jury against engaging in illegitimate reasoning when consideringthe evidence about Mr Poa's previous convictions. In this respect, the directionsgiven fell short of the ideal.[121] We are satisfied, however, that although her directions could have been clearer, Judge Bouchier did give the jury an adequate direction on illegitimatereasoning when considering the evidence about Mr Poa's previous convictions.Judge Bouchier did this in the following way:(1) First, she referred to the evidence of Mr Poa's previous convictions as being just a small piece of the evidence in the total volume of evidence that the jury had to consider.(2) Second, Judge Bouchier instructed the jury to look at all of theevidence and "not just small parts of it". This was a warning that thejury could not rely solely on Mr Poa's previous convictions to findhim guilty of the charges.(3) Judge Bouchier instructed the jury not to be swayed by the prejudicialimpact of Mr Poa's previous convictions.[122] If we are wrong in our assessment of the adequacy of Judge Bouchier'ssumming-up, we are, nevertheless, very satisfied that this was a case in which nomiscarriage of justice occurred by reason of any omission in Judge Bouchier'ssumming-up because any errors in Judge Bouchier's summing-up relating to propensity were not capable of affecting the outcome of the trial.34 In this respect,33 Makin v Attorney-General for New South Wales [1894] AC 57 (PC) at 65.34 Crimes Act, s 385(1).the present case is analogous to decisions of this Court in Tuhaka v R35 and S v R36 in which it was held, in the context of those cases, that deficiencies in the trial Judges'propensity directions did not result in a miscarriage of justice. Our reasons for this part of our judgment can be summarised by emphasising three points.[123] First, this was a case in which the Crown placed very little reliance on theevidence of Mr Poa's prior convictions. This topic received minimal attention in Ms O'Connor's closing address and Judge Bouchier described this part of the case as being "a small part" of the evidence.[124] Second, this was a very strong Crown case. The evidence of Ms V was corroborated by the medical practitioner, who examined Ms V on the evening of 26 January 2013, and by the forensic evidence, which we have summarised in [13].[125] Third, this was a case in which far more prejudicial material was presented to the jury. We have referred to some of that evidence in [80]. One of the most prejudicial pieces of information was presented to the jury at the commencement of the trial when Mr Poa pleaded guilty to assaulting Ms V in his house on the evening of 25 January 2013. Mr Dodds acknowledged to the jury in closing that hisoffending did not do "him any credit at all". The fact Mr Poa pleaded guilty toCount 1 in the presence of the jury founded the basis for Mr Dodds to submit to the jury that Mr Poa was the sort of person who admitted his wrongdoing and thatalthough he had assaulted Ms V, this did not make him a "sexual abuser".[126] The evidence of Mr Poa's previous convictions was undoubtedlyovershadowed by far more prejudicial evidence, which the jury heard and saw in this case.[127] For these reasons we have dismissed Mr Poa's appeal against conviction.35 Tuhaka v R [2015] NZCA 540 at [29].36 S (CA289/2013) v R [2013] NZCA 598 at [27]–[29].Sentence appeal[128] Mr Poa appeals the 15-year sentence of imprisonment imposed by Judge Bouchier. He takes no issue with the imposition of a minimum period of imprisonment, which reflected just 45 per cent of this total sentence. The minimum period of imprisonment in this case was seven years.[129] The 15-year sentence of imprisonment was derived from a starting point of14 years. That starting point was based upon Judge Bouchier's assessment that Mr Poa's offending fell within band three of R v AM (CA27/2009).37 Judge Bouchierthen added a further year to reflect Mr Poa's previous convictions. Mr Dodds tookno issue with the one-year uplift imposed in relation to Mr Poa's previousconvictions. The sole basis upon which the sentence of imprisonment is challenged was the 14-year starting point adopted by Judge Bouchier.[130] We can find no fault with the starting point adopted by Judge Bouchier. Thiswas a case in which Mr Poa's offending contained five aggravating factors, namely:(1) actual physical violence;(2) prolonged detention of Ms V;(3) threats of severe physical violence and/or death, and Mr Poa's use ofhis gang affiliations to intimidate Ms V;(4) vulnerability of Ms V; and(5) multiple sexual offences perpetrated upon Ms V over approximately a 12-hour period.[131] This case fell well within band three as explained by the Court of Appeal in R v AM.37 Sentencing notes, above n 8, at [58]; and R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [105].[132] The total sentence of 15 years' imprisonment was within the range that wasavailable.Result[133] The application for an extension of time to appeal is granted but the appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondents