BRIGGS v R [2020] NZCA 453

BRIGGS v R [2020] NZCA 453 [25 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA204/2019[2020] NZCA 453BETWEEN ARTHUR BRIGGSAppellantAND THE QUEENRespondentHearing: 23 July 2020Court: Clifford, Woolford and Dunningham JJCounsel: S J Gray for the AppellantK S Grau for the RespondentJudgment: 25 September 2020 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The application to adduce fresh evidence is granted.B The appeal is allowed to the extent that the minimum period ofimprisonment of seven years is quashed.C The sentence of ten years and six months' imprisonment is confirmed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] This is an appeal against sentence by Arthur Briggs on the basis that thesentence imposed is manifestly excessive. Mr Briggs was convicted in theDistrict Court at Wellington of one charge of causing grievous bodily harm with intentto cause grievous bodily harm,1 three charges of injuring with intent to injure,2 twocharges of assault with a weapon3 and five charges of assault.4 On 10 May 2016, hewas sentenced to 10 years and six months' imprisonment with a minimum period ofimprisonment (MPI) of seven years.5 He filed a notice of appeal three years later on9 May 2019. Accordingly, Mr Briggs seeks leave from this Court to file the notice ofappeal out of time.Factual background[2] Mr Briggs was sentenced on a number of charges arising out of two incidentsat the Rimutaka Prison. The first, more serious, incident occurred on 1 June 2012.The incident gave rise to a charge of causing grievous bodily harm with intent to causegrievous bodily harm, three charges of injuring with intent to injure, two charges ofassault with a weapon and four charges of assault. There were six victims: one a fellowinmate and the remaining five all Corrections officers. At the time of the incident,Mr Briggs was serving a sentence of nine years' imprisonment for being party to thewounding of another inmate at another prison in March 2008.[3] That incident involved Mr Briggs and three others going into the cell of aMr Matenga, a fellow inmate who had transferred to Rimutaka Prison in lateMay 2012. A fifth inmate stood at the door as a lookout. Mr Briggs and his fellowinmates punched Mr Matenga heavily in the face, held him down in a headlock andrepeatedly punched and kicked him. For context, there had been rumours thatMr Matenga had "narked" on fellow prisoners about drug use. The lookout thenwarned Mr Briggs of the approaching Corrections officers.[4] Corrections Officer Dixon approached Mr Briggs in the cell. Mr Briggs thenkicked the officer to the face and head, causing him to fall to the ground, whereMr Briggs kicked him twice, rendering the officer unconscious. Mr Briggs punched asecond Corrections officer, who had come to assist, in the face. Mr Briggs and anotherinmate then repeatedly punched and kicked a third Corrections officer, who was on1 Crimes Act 1961, s 188(1).2 Section 189(2).3 Section 202C.4 Section 196.5 R v Briggs [2016] NZDC 8326.the ground and rendered incapable of resistance by a jersey pulled over his head. Soonafter, Corrections Officer Dixon regained consciousness and stumbled from the cell.Mr Briggs then punched him heavily to the head. The officer was knockedunconscious again, leading to a very significant injury. Mr Briggs then punched afourth Corrections officer in the head, swung a plastic meal tray at him and then threwthe tray. This was followed by a glancing punch at that Corrections officer. When thatCorrections officer attempted to restrain Mr Briggs, he head-butted the officer twice.[5] Of the five victims, Corrections Officer Dixon suffered the most seriousinjuries. These included two skull fractures, brain swelling, a fractured left eye socketand a badly damaged right eye. The officer has been permanently affected and hecontinues to display well-known physical and mental side effects of a significant braininjury. He will likely never be able to work again as an active Corrections officer.The other Corrections officers all received lesser injuries, including bruising, swellingand associated tenderness.[6] The second incident occurred in 2014, two years after the first incident.This incident also involved an assault. It occurred while Mr Briggs was awaiting trialfor the charges arising from the first incident. On 25 September 2014, Mr Briggspunched another Corrections officer, causing a mild concussion, when Mr Briggs hadbeen told to stop fighting with another inmate.Sentencing in the District Court[7] On 10 May 2016, Mr Briggs was sentenced by Judge Davidson of theDistrict Court at Wellington. The Judge started by recounting the factual andprocedural history.6 The Judge observed that Mr Briggs sought and rejected a sentenceindication in mid-2013. He then pleaded guilty to some charges in July 2013 and againsome more in May 2014. Mr Briggs then applied to set aside his guilty pleas — hewas largely unsuccessful. He was then tried before Judge Davidson and a jury. He wasfound guilty of one charge, but acquitted of the other. The Judge noted that Mr Briggshad been before the Court in respect of these charges for nearly four years. The Judge6 At [4]–[17].considered that this was of some significance as over the last six months Mr Briggshad demonstrated an improved attitude and insight into his offending.[8] The Judge then decided that the District Court should retain jurisdiction asopposed to transferring sentencing to the High Court to consider a sentence ofpreventive detention.7 In sentencing Mr Briggs, the Judge adopted a starting point of10 years' imprisonment for the charge of causing grievous bodily harm to CorrectionsOfficer Dixon. There was then an uplift of three years to reflect the other offendingand Mr Briggs' previous convictions. Accordingly, the Judge adopted an overallstarting point of 13 years' imprisonment.8[9] As to aggravating factors, the Judge noted the following.9 First, the attack onMr Matenga was premeditated. While Mr Briggs was not necessarily the organiser,he was clearly a key player. Secondly, while the offending against the Correctionsofficers may not have been specifically premeditated, it was an inevitable result ofattacking another prisoner. Thirdly, two of the victims, namely CorrectionsOfficer Dixon and Mr Matenga, suffered serious injuries. In particular, CorrectionsOfficer Dixon's injuries were life-threatening and life-changing. Fourthly, the blowswere directed to the head and upper body. Fifthly, the attack was conducted by agroup; the Judge described it as a "concerted, almost pack-like attack".10 Sixthly,Mr Briggs' previous convictions and the fact that the offending occurred while he wassubject to a sentence of imprisonment were also aggravating factors. The Judgereferred in particular to a previous conviction for wounding in March 2008 whenMr Briggs was an inmate at Ngawha Prison. There, Mr Briggs took part in a concertedand sustained group beating of another inmate, who suffered serious injuries as aresult. He was found guilty of being a party to the wounding and sentenced to nineyears' imprisonment.11 Mr Briggs has nearly 50 other convictions.[10] As to mitigating factors, the Judge identified just two.12 First, there were theguilty pleas which Mr Briggs entered in a piecemeal fashion. The Judge considered7 At [5].8 At [40].9 At [27]–[30].10 At [30].11 R v Briggs HC Whangarei CRI-2008-027-660, 14 August 2009.12 R v Briggs, above n 5, at [31]–[32].that a 15 per cent discount was appropriate and realistic. Secondly, the recent progressthat Mr Briggs had made, including developments in his insight into his offending andsome expression of remorse, warranted some discount. A discount of six months wastherefore allowed to reflect the encouraging signs that Mr Briggs was willing toundergo treatment as well as his inkling of remorse. Together with a 15 per centdiscount was given for his guilty pleas, that led to an end sentence of 10 and a halfyears' imprisonment on the lead charge of causing grievous bodily harm.13[11] The Judge imposed a sentence of four years' imprisonment on the three chargesof injuring with intent to injure; three and a half years' imprisonment on the twocharges of assault with a weapon; and one year's imprisonment on the five charges ofassault.14 All sentences were to be served concurrently.[12] Finally, Judge Davidson imposed a MPI of seven years for reasons ofdeterrence, denunciation and accountability.15Application for an extension of time in which to appeal[13] The June 2012 offending was charged on indictment and consequently theformer appeal provisions under Crimes Act 1961 apply.16 Section 388(1) of theCrimes Act provided that a person convicted "shall give notice of appeal within28 days after the date of conviction or (if the convicted person is not sentenced on thedate of conviction) at any time after the conviction, but not later than 28 days after thedate of sentence". The sentence appealed against is dated 10 May 2016. The noticeof appeal is dated 9 May 2019, almost exactly three years after the date of sentencing.The appeal is therefore out of time. Section 388(2) provided, however, that "[t]he timewithin which notice of appeal may be given may be extended at any time by theCourt of Appeal".13 At [43].14 At [47].15 At [44].16 Criminal Procedure Act 2011, s 397(3)(h). The September 2014 assault was laid as a category 2charge under the Criminal Procedure Act. Notwithstanding, it was agreed that this Court hadjurisdiction to hear the entire sentence appeal pursuant to s 384A(2)(a) of the Crimes Act becauseMr Briggs was sentenced on the same occasion in respect of all the charges: Briggs v RCA204/2019, 1 November 2019 (Minute of Brown J). In any case, the Court has a comparablepower to extend time under s 248(4) of the Criminal Procedure Act, which we would exercise ifit applied in this case.[14] This Court has previously observed that the "touchstone" for a successfulapplication is that it must be in the interests of justice, taking into account all relevantcircumstances, to grant an extension.17 Applications for extensions of time canessentially be reduced to two questions.18 First, why was the appeal filed late?Secondly, what merit, if any, does the prospective appeal appear to have?[15] The onus is on the appellant to provide sufficient information to satisfythe Court that granting leave is in the interests of justice.19 Applications for leave toappeal out of time involve a balancing test in which relevant considerations includethe wider interests of society in the finality of decisions, the strength of the proposedappeal, whether the liberty of the subject is involved, and the practical utility of anyremedy sought.20 Significantly, the Court will only entertain an appeal that is manyyears out of time in exceptional circumstances.21 A long delay can be a major factorweighing against leave, and, where unexplained, can be decisive.22AnalysisWhy was the appeal filed late?[16] Ms Gray, for the appellant, submits that Mr Briggs was unable to complete therequisite paperwork for filing an appeal due to being relocated. Mr Briggs says thatshortly after his sentencing on 10 May 2016, he instructed his lawyer at the time tofile an appeal. However, he was transferred to several different prisons during theperiod for filing an appeal. He was therefore unable to file an appeal within therequisite time period. In reply, the Crown submits that this explanation is inadequate,particularly as Mr Briggs was aware from the start of the time period for bringing anappeal. It observes that this Court has previously described a delay of one year and10 months as being a significant one.2317 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [99] and[106].18 Mikus v R [2011] NZCA 298 at [26]; and R v Slavich [2008] NZCA 116 at [14].19 R v Davis [2007] NZCA 577 at [13].20 R v Lee, above n 17, at [97]–[99].21 Butcher v R [2015] NZCA 102 at [7].22 R v Lee, above n 17, at [115].23 S (CA88/2014) v R [2014] NZCA 583 at [12].[17] There has been around a three-year delay between the sentence being imposedand the filing of the appeal in this case. That is a significant delay. As we have notedabove, and as previously observed by this Court, an appeal that is many years out oftime will be entertained only in exceptional circumstances.24 Mr Briggs' relocationon its own does not provide an adequate explanation for the three years' delay. This isa factor weighing heavily against granting an extension of time in which to appeal.[18] In the meantime, Mr Briggs has been sentenced to a further cumulativesentence of three years and 10 months' imprisonment imposed on 3 November 2017for offending committed on 19 October 2016, which, again, involved a group attackby inmates on Corrections officers.25[19] Mr Briggs' sentence end date is now 9 September 2030. He is not eligible forparole until 8 March 2027. The calculations are as follows:SentencecommencementdateLength of sentence Parole eligibilitydateSentence end date14 August 2009 Nine years 25 December 2010 22 December 201610 May 2016 10 years and six months(seven year MPI)9 May 2023 9 November 20269 November 2026 Three years and10 months (cumulativeon 10 year and sixmonths, subject tosecond strike, must servefull sentence)8 March 2027 9 September 2030[20] This compounds the difficulty in dealing with appeals against sentence yearsafter imposition. In the present case, Mr Briggs received a totality discount of fourmonths when sentenced on 3 November 2017 on the basis that he was already servinga sentence of 10 years and six months' imprisonment.24 Butcher v R, above n 21, at [7].25 R v Briggs [2017] NZHC 2696.What merit, if any, does the prospective appeal appear to have?[21] Ms Gray submits that the sentence was manifestly excessive. In particular, shesubmits that the sentencing Judge:(a) made an error in principle in the application of R v Taueki,26 in that hetook into account matters which were not relevant in assessing thestarting point for the lead charge of causing grievous bodily harm;(b) did not give sufficient consideration to Mr Briggs' personal mitigatingcircumstances because of the lack of a report detailing these matters;and(c) erred in imposing an MPI of two-thirds.[22] First, Ms Gray submits that the Judge failed to identify the Taueki band anderred in assessing the aggravating factors of the offending, particularly in failing toassess the extent to which the factors were present or overlapped. The sentencingJudge identified a number of aggravating factors, as summarised at [9] above. Thesefactors correlate with the factors outlined in Taueki.27 The Judge settled on a startingpoint of 10 years' imprisonment. That places the sentence at the top of band two(five to 10 years) to the bottom of band three (nine to 14 years).28[23] This Court has previously explained that band two will be appropriate forgrievous bodily harm offending which features two or three aggravating factors.Band three is appropriate for grievous bodily harm offending which has three or moreaggravating factors and the combination of those factors is particularly grave.29By way of example, the Court observed that where the offending is an "assault on apolice officer by multiple attackers with weapons [leading] to a life-threatening injury,a starting point at or near the 14-year maximum may be called for".30 There are somesimilarities between that example and the present case: there was an attack on26 R v Taueki [2005] 3 NZLR 372 (CA).27 At [31].28 At [34].29 At [40].30 At [41(c)].Corrections officers, there were multiple attackers, the attack lead to a life-threateninginjury for Corrections Officer Dixon, and there was an attack to the head, itself anaggravating factor which may be considered the equivalent of the use of a weapon.There were, accordingly, at least three of the aggravating factors identified in Taueki.[24] Significantly, the focus in sentence appeals is on whether the sentence imposedis within the range rather than the process by which the sentence was reached.31 In thecircumstances, a starting point of 10 years' imprisonment was justified whether theoffending fell in band two or band three.[25] Secondly, Ms Gray also submits that there was insufficient consideration ofMr Briggs' personal mitigating circumstances due to the lack of a report on thesematters. She notes, in particular, Mr Briggs' personal background, lack ofrehabilitation and mental health needs. To that end, Ms Gray seeks leave to adducefresh evidence by way of a psychiatric report by Dr James Cavney.[26] The Court may receive new evidence on appeal if it thinks it is necessary orexpedient in the interests of justice.32 An appellant must demonstrate that the newevidence is sufficiently fresh and sufficiently credible.33 Evidence which could, withreasonable diligence, have been called at trial will not qualify as sufficiently fresh.The overriding criterion is what course will best serve the interests of justice.[27] Dr Cavney is a consultant psychiatrist who was instructed by counsel forMr Briggs to prepare a psychiatric report for his appeal against sentence. Dr Cavneyacknowledges that at the time of sentencing the Judge did have reports from apsychiatrist, Dr Krishna Pillai, and a psychologist, Ms Sabine Visser, but these reportswere, in essence, risk assessments and provided similar conclusions that Mr Briggswas at medium to high risk of future violent offending. They did not, however,primarily consider factors which may have been considered as mitigating at the timeof offending.31 D (CA197/2014) v R [2014] NZCA 373 at [18]; and Tutakangahau v R [2014] NZCA 279, [2014]3 NZLR 482 at [26]–[36].32 Crimes Act, s 389.33 R v Bain [2004] 1 NZLR 638 (CA) at [22]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273at [117]–[120].[28] In Dr Cavney's opinion, it is probable that Mr Briggs would meet the criteriafor post-traumatic stress disorder and this was significantly related to the assaults onthe Corrections officers at the time of offending. Dr Cavney also refers to the lack ofopportunity to engage in rehabilitative programmes. He comments it is possible that,had Mr Briggs engaged in such interventions, that could have reduced the likelihoodof further institutional offending.[29] Dr Cavney concludes:In my clinical opinion, Mr Briggs had a number of mental health issues(including depression and symptoms of posttraumatic stress disorder) thatcontributed to his index offending. It is also my opinion that his transfer toanother unit in the weeks before that was a significant if not criticalcontributing factor that could have been better managed by the Department ofCorrections.The nexus between depression and posttraumatic stress disorder and criminaloffending has precedent, in my experience of other cases, to be considered bythe Court as a point of mitigation that has invited sentence discounting asdetermined by the presiding Judge.[30] Mr Briggs has also filed an affidavit himself dated 14 February 2020, in whichhe confirms everything he told Dr Cavney is true and correct to the best of hisknowledge. He states that since being in custody from October 2007 he has notreceived any real rehabilitation from the Department of Corrections.[31] He acknowledged that it is his offending in prison, being assaults on otherinmates or Corrections officers, that has kept him in high or maximum security.He refers to a "siege mentality" in prison whereby it is either assault or be assaulted;not necessarily in that moment, but at some time in the future.[32] He says his offending has become worse in prison. He has received two strikesin prison. He came into prison as a young man and his sentence has just become longerand longer. He concludes:Since being in jail, I have had no rehabilitation. I have not learned any newskills. I have had no counselling. I have spent most of my time locked up ina 4 by 6 concrete cell. I eat alone. I have mainly been housed in wings withgang members. Only now do I have my first job in prison. I have never hadone before now. I feel very sad at times and I have no one to talk to aboutdeep things. All my calls are recorded except to my lawyer.[33] In response, the Crown filed an affidavit dated 13 March 2020 by a registeredpsychologist employed by the Department of Corrections, Ms Helen Garrett. She wascross-examined on her affidavit by Ms Gray. Ms Garrett provided information aboutthe programmes available in prison to address violent offending and the generalprinciples that apply when considering eligibility and suitability for such programmes.She also addressed specific matters raised in Dr Cavney's report and Mr Briggs'affidavit.[34] In summary, she states that Mr Briggs has been provided with several andregular opportunities to engage with psychological services as early as 2011, as wellas attend the Drug Treatment Unit (DTU) early in 2012, but he has chosen not toparticipate in these processes. He has engaged in two Short Motivational Programmes(SMP) designed to increase his motivation to change. However, this on-going lack ofmotivation, as well as on-going offending, active charges, high/maximum securityclassifications and time left until parole eligibility date (PED) have contributed to hisopportunities to engage in psychological high intensity programmes being limited.[35] Ms Garrett states that due to his PED being extended to 2027, he will likely beassessed and considered for suitability for the 32-week Special Treatment UnitRehabilitation Programme for Violent Offending (STURP-VO) in 2025, although hecould be considered at an earlier time if he reduced his high security classification to,at least, low-medium and evidenced an active and sustained motivation to engage inpsychological assessment and subsequent intervention. Should he demonstratemotivation, he could also be considered for the Drug Treatment Programme (DTP —formerly the DTU).[36] In cross-examination, Ms Garrett acknowledged that the first courseundertaken by Mr Briggs was a SMP in 2016, seven years after entering prison.She also acknowledged that having spent the last 13 years almost entirely in high ormaximum security, Mr Briggs had not been selected for any substantive rehabilitationprogramme because of his security classification and time to PED, despite being listedfor the STURP-VO since 2011. She was not able to dispute Dr Cavney's conclusionof "pervasive and chronic low mood characterised by a loss of hope about his futureand impaired motivation to proactively seek interventions that might assist him inmoving forward".[37] The sentencing Judge gave a discount of six months for Mr Briggs' willingnessto undergo treatment and his inkling of remorse.34 The Judge also acknowledged that:[24] I have read the pre-sentence reports, the psychological andpsychiatric reports. It is clear enough that you have a strong anti-authoritarian,antisocial and confrontational attitude with problems with alcohol,impulsivity, recklessness and risk-taking. Your sentences of imprisonmentbetween 2004 and 2008 have prevented any real treatment for you until fairlyrecently.[25] Recently, you have begun to co-operate and engage in treatment.This must, by the prison authorities, have been seen to be fairly encouragingbecause your security classification was recently reduced. Both thepsychiatrist and the psychologist note that there is an obvious risk of futureviolence whether you are in prison or in the community.[26] In prison, you are susceptible to the inmates' pro-violence code; andin the community you are susceptible to alcohol, impulsivity and risk-taking.These kinds of comments are reflected in the pre-sentence reports as well.[38] As a result of the material that was available to him, the Judge gave Mr Briggsa six-month discount for personal mitigating factors. Dr Cavney's diagnosis ofdepression and post-traumatic stress disorder does not add substantially to the pictureof Mr Briggs' offending, such that a further discount is warranted. Dr Cavney'sdiagnosis was made following an interview of Mr Briggs in December 2019, sevenand a half years after the offending on 1 June 2012. For the purposes of sentencing,the Judge had reports from Dr Pillai and Ms Visser. Dr Pillai had recorded Mr Briggs'explanation for the offending as occurring when Corrections officers refused hisattempts to leave Mr Matenga's prison cell. He gave a similar account to Dr Cavney,saying he felt trapped in the cell which triggered an acute stress reaction. Dr Cavneydiagnosed a post traumatic stress disorder while Dr Pillai diagnosed an antisocialpersonality disorder. Whatever the proper diagnosis (and they may both be correct),Mr Briggs reacted in an impulsive, irresponsible and aggressive manner with scantregard for his own safety and the safety of others. Corrections officers reported himas being out of control.34 R v Briggs, above n 5, at [41].[39] In Taueki, this Court observed that while a mental illness or disorder may be amitigating factor, suggestions of diminished responsibility by reason of a psychiatricor behavioural disorder must be treated with caution.35 Importantly, even if theoffending can be attributed to a psychiatric disorder, that should not necessarily beseen as a mitigating factor. In some cases, reduced moral responsibility may becountered by proper consideration of public safety.36[40] Although the report by Dr Cavney and the affidavit of Mr Briggs are not strictlyspeaking fresh in that they are evidence which could have been called at sentencing,the Crown responded with an affidavit from Ms Garrett on various matters relating toMr Briggs' time in prison. We also found them useful in considering the variousgrounds of appeal. We accordingly admit the report and affidavits as new evidence onappeal as being expedient in the interests of justice.[41] Thirdly, Ms Gray submits that the Judge erred in imposing an MPI of sevenyears, being two-thirds of the sentence of 10 years and six months' imprisonment.An MPI can be imposed on sentences of more than two years where the Court issatisfied that the ordinary non-parole period is insufficient for all or any of thefollowing purposes:37(a) holding the offender accountable for the harm done to the victim andthe community by the offending;(b) denouncing the conduct in which the offender was involved;(c) deterring the offender or other persons from committing the same or asimilar offence; and(d) protecting the community from the offender.[42] The Judge did not give detailed reasons for the imposition of an MPI. All hesaid was, "[i]n my view, it is clearly justified for reasons of deterrence, denunciation35 R v Taueki, above n 26, at [45].36 R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493 at [36].37 Sentencing Act 2002, s 86(2).and to hold you accountable."38 In doing so, the Judge simply identified three of thestatutory purposes. He did not refer to comparative decisions or to other relevantstatutory purposes and principles, such as the obligation to impose the least restrictiveoutcome that is appropriate in the circumstances.39[43] It is here that we see merit in the prospective appeal.[44] Mr Briggs is facing a significant term of imprisonment. Even without an MPI,his sentence is very lengthy. In our view, it is sufficient by itself to hold himaccountable for the harm he has done, to denounce his conduct and deter him fromcommitting further offences. Given his entrenched position in prison, any hopes ofrehabilitation should not be extinguished. On the contrary, rehabilitation should beencouraged to the extent possible, especially so when Mr Briggs has demonstrated hiswillingness to engage in rehabilitation.[45] It is clear that Mr Briggs has been unable to access significant andcomprehensive rehabilitative programmes because his PED is years away. We are ofthe view that rehabilitative programmes should be undertaken sooner rather than later.In saying that, we acknowledge the availability of rehabilitation programmes in prisonand the timing of such programmes is a wider issue, of importance and some publiccontroversy. Its resolution is beyond the scope of this judgment.[46] We note that when Mr Briggs was sentenced to nine years' imprisonment on14 August 2009, the Judge considered the imposition of an MPI, but declined to doso.40 When he was sentenced to three years and ten months' imprisonment on3 November 2017, the Judge did not even consider the imposition of an MPI.41 In thepresent case, after giving a discount for "encouraging signs" he was willing to undergotreatment and his "inkling of remorse", the Judge imposed the maximum MPI oftwo-thirds of the full term of the sentence.42 We think that the balance was betterstruck by not imposing an MPI at all. That would give more flexibility to the38 R v Briggs, above n 5, at [44].39 Sentencing Act, s 8(g).40 R v Briggs, above n 11, at [25].41 R v Briggs, above n 25.42 R v Briggs, above n 5, at [41].Department of Corrections to offer appropriate rehabilitation sooner to Mr Briggs, butalso the Parole Board when considering Mr Briggs' ultimate release. The Parole Boardplays a very important role in the process. It should be noted that one of its guidingprinciples is that when making decisions about, or in any way relating to, the releaseof an offender, the paramount consideration for the Board in every case is the safetyof the community.43 Mr Briggs will therefore not be released until it is safe to do so,but he will benefit from seeing the Parole Board sooner rather than later.Result[47] The application for an extension of time is granted.[48] The application to adduce fresh evidence is granted.[49] The appeal is allowed to the extent that the minimum period of imprisonmentof seven years is quashed.[50] The sentence of ten years and six months' imprisonment is confirmed.Solicitors:Crown Law Office, Wellington for Respondent43 Parole Act 2002, s 7.