HUGHES v R [2022] NZCA 565

HUGHES v R [2022] NZCA 565 [18 November 2022]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TOS 202 CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF VICTIM PROHIBITED BY S 204 OF THECRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA751/2018[2022] NZCA 565BETWEEN BLAINE ROSS HUGHESAppellantAND THE KINGRespondentHearing: 27 October 2022Court: Collins, Muir and Cull JJCounsel: K J Basire and A J Lee for AppellantC A Brook for RespondentJudgment: 18 November 2022 at 9.30 amJUDGMENT OF THE COURTA The application to extend time for filing the appeal is granted.B The application to adduce further evidence is granted.C The appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 23 May 2014, Mr Hughes pleaded guilty to attempted murder, unlawfulpossession of a firearm, possession of an offensive weapon, unlawfully taking a motorvehicle, theft of a sum in excess of $1,000 and burglary. He was sentenced by Heath Jon 12 December 2014 to a term of preventive detention in relation to the charge ofattempted murder, with the condition he serve a minimum of five years' imprisonment(MPI) before he is eligible to be considered for parole. On all other charges he wassentenced to concurrent terms of one year's imprisonment.1 At sentencing the Crownoffered no evidence in relation to charges of kidnapping and injuring with recklessdisregard. Mr Hughes was discharged on those matters.[2] Mr Hughes now appeals his conviction on the charge of attempted murder andthe sentence of preventive detention.[3] The appeal against conviction is premised on the argument Mr Hughes madefalse confessions when he admitted having attempted to murder the victim and that hewas unduly pressured into pleading guilty by reason of:(a) gang pressure;(b) police coercion; and(c) trial counsel error.[4] The appeal against sentence claims:(a) Heath J was misled when accepting Mr Hughes had a pattern of seriousoffending because Mr Hughes had exaggerated his previous offences.(b) Mr Hughes falsely claimed he had homicidal ideations.1 R v Hughes [2014] NZHC 3208 [Sentencing notes] at [47].(c) The Judge failed to consider the possibility of an Extended SupervisionOrder (ESO) being imposed at the conclusion of a determinatesentence.(d) The Court failed to take into account Mr Hughes had never previouslyreceived the benefit of rehabilitation programmes.(e) The Court did not have the benefit of evidence about the likely effectof synthetic cannabis on Mr Hughes when he offended.(f) The Judge also failed to properly consider the fact Mr Hughes was20 years old at the time of his offending and his prospects forrehabilitation.Narrative[5] The summary of facts which Mr Hughes accepted when he pleaded guilty tothe charge of attempted murder records that on the evening of 3 December 2013 heparked his vehicle in the car park of the Sir Basil Arthur Park in Timaru. An area oftrees and a barbed-wire fence separated the car park from a road. The position whereMr Hughes parked his car was about 700 metres from his home. He had smoked asignificant quantity of synthetic cannabis that day.[6] The victim (MM) who at the time was 13 years old rode her bicycle pastMr Hughes, who was standing by the side of the road. He engaged MM inconversation and asked her how far it was to Pleasant Point as he had to go there topick up a car from his brother. The victim then continued riding her bicycle but a fewminutes later she returned to where Mr Hughes was standing and asked him if hewould like her to get one of her parents to drive him to Pleasant Point. Mr Hughesdeclined this offer. MM suggested he use his phone to call someone to help him out.Mr Hughes then climbed over the fence to retrieve a cell phone from his car.[7] When Mr Hughes returned to the roadway, he approached MM and pulled heroff her bicycle. Mr Hughes placed his arm around MM's neck and applied significantpressure to her throat. Mr Hughes then dragged MM backwards over the barbed-wiredfence into the trees adjacent to where his car was parked in a getaway position withthe driver door open and the key in the ignition. The victim lost consciousness as aconsequence of the pressure Mr Hughes applied to her throat.[8] A witness, who lived nearby, saw what Mr Hughes had done and immediatelygot into her car and drove to where Mr Hughes' car was parked. The witness startedcalling out but initially could not see MM. At this stage, Mr Hughes ran off. MMthen staggered out of the bushes where she had been dragged to by Mr Hughes.Approximately one minute and 48 seconds elapsed from when the witness sawMr Hughes dragging MM over the fence until when MM staggered out of the bushes.[9] When the police arrived at the scene, they discovered a machete in Mr Hughes'vehicle and an unloaded .22 rifle. The firing pin had been removed from the rifle.[10] Mr Hughes was located by the police on the morning of 7 December. He wastaken to the police station and interviewed. Another interview took place on9 December.[11] Initially Mr Hughes told a friend he was responsible for the offending, but thenchanged his account when he claimed his brother was the offender. When he was firstinterviewed by the police Mr Hughes claimed that all he wanted to do was steal MM'sbicycle because he had run out of petrol and he needed transport. He maintained thatany injuries MM had received occurred accidentally when she fell onto the fence. Thepolice knew this explanation was false because Mr Hughes did not take MM's bicyclewhen he fled the scene, there was sufficient petrol in Mr Hughes' car for the police todrive it to the police station and the witness saw Mr Hughes dragging MM over thebarbed-wire fence.[12] Mr Hughes was initially charged with injuring with intent to injure. On19 December he was also charged with kidnapping and sent to Christchurch Men'sPrison where he was held on remand.[13] When Mr Hughes was charged with injuring with intent to injure, Ms Lock, astaff solicitor at Timpany Walton in Timaru, was assigned by Legal Aid authorities torepresent Mr Hughes. At the time, Ms Lock was categorised by Legal Aid as a PAL 1lawyer, meaning she could act for Legal Aid clients who were facing a maximumpenalty of 10 years' imprisonment and who had not elected trial by jury. Soon afterMs Lock was assigned to act for Mr Hughes, she moved into the firm's property andcommercial team. At that point, Ms Clifford, a partner in the litigation team atTimpany Walton took over the responsibility of acting for Mr Hughes.[14] At the time, Ms Clifford was categorised by Legal Aid as a PAL 2 lawyer.When Mr Hughes was charged with kidnapping, which carries a maximum sentenceof 14 years' imprisonment, he would normally have been represented on legal aid bya PAL 3 lawyer. Ms Clifford was, in any event, a very experienced criminal lawlawyer, who had represented a range of clients, including one self-funded client whohad been charged with murder. Ms Clifford also had the benefit of being able toconsult Mr Shaw, one of her senior partners. He was a PAL 4 Legal Aid lawyer. Aswe shall explain at [71] to [74], although Ms Clifford did not have the right Legal Aidclassification when she acted for Mr Hughes, the real issue is whether she failed toprovide Mr Hughes with the advice and representation expected of a competentlawyer.[15] A number of the handwritten file notes made by Ms Lock and Ms Clifford havebeen removed from the file created at Timpany Walton. Ms Clifford, however, typeda number of file notes. Copies of those file notes have been retrieved as has a copy ofTimpany Walton's time records for Mr Hughes' case. The time records showMs Clifford spoke to Mr Hughes by telephone on 10 occasions and met with him inTimaru on seven occasions. The time records also show Mr Shaw was briefly involvedwith Mr Hughes' case on 19 May and 10 December 2014, just prior to whenMr Hughes was sentenced.[16] Ms Clifford had crucial telephone discussions and meetings with Mr Hugheson 19, 20 and 21 May. Her very comprehensive typed file notes record the advice shegave to Mr Hughes and his responses. It is necessary to explain in some detailMs Clifford's advice to Mr Hughes because he now alleges she failed to provide himwith competent representation.[17] Mr Hughes was scheduled to appear at Timaru District Court on 20 May toenter guilty pleas to the kidnapping and injuring charges. On 19 May, Ms Cliffordtelephoned Mr Hughes at Christchurch Men's Prison. He was concerned that thepolice summary of facts included an allegation Mr Hughes had kidnapped MM withthe intention of sexually violating her. Mr Hughes was adamant in his discussionswith Ms Clifford there was no sexual motivation to the kidnapping of MM.Ms Clifford advised Mr Hughes that he could plead guilty to the charges but seek adisputed facts hearing to address the sexual motivation issue.[18] During the course of the 19 May telephone call, Mr Hughes told Ms Clifford"that he should just tell the police the whole story". At this stage Mr Hughes toldMs Clifford that the abduction of MM was part of an elaborate plan to obtain a ransompayment of $10,000, which he said he and two other offenders planned to extract fromthe parents of MM. Mr Hughes told Ms Clifford that MM's mother worked at a bank.This later proved to be false as MM's mother was not in the paid workforce.Ms Clifford's file notes record she thought the ransom explanation offered byMr Hughes "sounded far-fetched".[19] Ms Clifford met with Mr Hughes on 20 May, after he was transported fromChristchurch Men's Prison to Timaru. The key points in Ms Clifford's file note are:(a) Contrary to his earlier instructions, Mr Hughes now wished to plead notguilty. His explanation for this change of heart was that he wanted tostay in the remand wing.(b) Ms Clifford explained the consequences of pleading not guilty and theevidence against Mr Hughes.(c) Mr Hughes then said he would not take the case to trial but that hewished to plead not guilty simply to "piss the police off" because theywere now saying he intended to sexually violate MM.(d) Ms Clifford told Mr Hughes he was "being an idiot" but that she wouldnot pressure him into pleading guilty if he did not want to do so.(e) Mr Hughes again said he was contemplating talking to the police and"making a full statement" about the ransom explanation.(f) Mr Hughes said "he did not really care how long he spent in prison aslong as it was less than 6 years".[20] Mr Hughes was held in the Timaru police cells. There he was seen bySenior Constable Hampton, who knew Mr Hughes from his many previous encounterswith the Timaru Police and the criminal justice system. Constable Hampton toldMr Hughes that he did not believe Mr Hughes simply wanted to steal MM's bicycleand that if he wanted to make a further statement to the police then he could do so toDetective Coulter, the officer-in-charge of the case.[21] Constable Hampton was also the custody officer at the Timaru District Courtcells. He noted in Mr Hughes' possessions an envelope addressed to the family of thevictim. He told Detective Coulter about that envelope at 12.55 pm on 20 May.[22] In his evidence before us Constable Hampton said: Mr Hughes said that he would like to speak to Detective Coulter becausehe had been thinking about killing the victim and he had had these thoughtspreviously in relation to other people. I do not recall him mentioning anythingabout others being involved, or a ransom plan, but he may have done. If hehad I would certainly have told him I didn't believe that story either.[23] On 21 May, Constable Hampton spoke to Detective Coulter and took her to thecell block where Mr Hughes told the detective that he wanted to speak to her and makea further statement.[24] Soon thereafter, Detective Coulter spoke to Ms Clifford at the District Courtand told her Mr Hughes "had made some disclosures [about] his motive while in theTimaru cells and he was keen to plead guilty and make a full statement". Ms Clifford'sfile note records that she reminded Detective Coulter that Mr Hughes should speak toMs Clifford before he spoke to the police again. About 15 minutes laterDetective Coulter sent a text to Ms Clifford saying Mr Hughes was "ready to talk",and that the prison truck was scheduled to return to Christchurch at 11.30.If Ms Clifford could not see Mr Hughes before then because of her courtcommitments, Detective Coulter said the police were willing to drive him back toChristchurch Prison later that day.[25] Ms Clifford was able to speak to Mr Hughes at 12.55 pm. Their meeting lastedabout 50 minutes. The key points that emerge from Ms Clifford's file note are:(a) She was assured by Mr Hughes that he was not being pressured by thepolice to make a further statement.(b) He wanted to make a further statement to "get the motive issue clearedup".(c) Ms Clifford urged Mr Hughes not to make a further statement as itwould lead to further charges but that, at the end of the day, it was hisdecision.(d) Mr Hughes said he had already spoken to Constable Hampton and toldhim essentially what he had told Ms Clifford.(e) Ms Clifford's file note records:He asked me on two occasions if it would be better or worseif he told [the police] that he planned to kill the girl.I said most definitely worse and why would you say that. Hesaid he was just wondering.(f) "In the end he said he had decided to make a full statement and to pleadguilty". Ms Clifford told Mr Hughes that was his choice but she wantedhis instructions in writing before he pleaded guilty.(g) Ms Clifford warned Mr Hughes the police would want him to admit heintended to harm MM "and that he needed to be clear that this was notthe case and not be bullied into agreeing to that. He said he was awareof this and he would just not comment".(h) Mr Hughes reiterated his intention to plead guilty and signed writteninstructions to that effect. In those instructions he also said "I wish tomake a full statement to the police despite receiving advice that thismay result in further charges being laid".[26] Mr Hughes was then taken by Detective Coulter to an interview room wherehe made a further statement to the police, in which he confessed to having intended tomurder MM. Ms Clifford was unable to accompany Mr Hughes to that interviewbecause of her court commitments. During the interview with Detective CoulterMr Hughes acknowledged he was making a voluntary statement to the police, that hedid not have to speak to the police and that he had received advice from Ms Clifford.He told Detective Coulter that "even if the alternative [was] worse [he did not]wanna be known as a sex offender".[27] The DVD recording of the interview is no longer available. There is, however,a transcript of the interview which records that early in the interview Mr Hughes saidthat when he pulled MM over the fence "I thought what would it be like to killsomebody" but he could not say for sure that he would have killed MM. He also saidthat on a previous occasion he had thought about killing an ex-girlfriend and that onanother occasion he thought about shooting a friend with a stolen revolver.[28] Towards the end of the interview Mr Hughes told Detective Coulter that if thewitness had not interrupted him after he dragged MM over the fence, he could possiblyhave been facing a murder charge. He also told the detective there was nothing hecould do to stop himself and that he was excited by "the thought of actually killingsomebody and getting away with it".[29] After a break in the interview, Detective Coulter resumed questioningMr Hughes. She told him he needed to be very clear in his responses. Thereafter,Mr Hughes said that he intended to take MM away in his car and kill her by chokingher to death.[30] After the interview concluded, Detective Coulter telephoned Ms Clifford andtold her Mr Hughes had confessed that he intended to kill MM and that she was notthe first person he had contemplated killing. Ms Clifford's file note records she wasstunned by Mr Hughes' admissions. She then telephoned Mr Hughes, who said thathe did not intend to kill MM but that was what the police wanted him to say.[31] Ms Clifford was clearly concerned that Mr Hughes had admitted to the policehe intended to murder MM and at the same time had told her that he did not intend tokill the victim. Ms Clifford told Mr Hughes he "was all over the place" and that shewanted him to be assessed by a forensic nurse. He agreed to this.[32] Mr Hughes was seen by a forensic nurse on 22 May. No issues emergedconcerning his fitness to plead.[33] Ms Clifford received a copy of the DVD recording of Mr Hughes' interviewwith Detective Coulter. She reviewed it hoping she might be able to have hisadmissions ruled inadmissible. After reviewing the DVD Ms Clifford realisedMr Hughes was not put under any pressure from Detective Coulter and that he was notcoerced into making his confession. In her evidence before us, Ms Clifford said it wasstriking "how little it took throughout the interview for [Mr Hughes] to give so muchinformation when he wasn't even being asked questions".[34] The charge of attempted murder was laid after Mr Hughes' admissions.Mr Hughes requested that he be brought before the court as soon as possible so thathe could plead guilty. He provided written instructions to Ms Clifford on 23 May, inwhich he said he wanted to plead guilty to attempted murder and that he had "beenadvised that [he] should not plead guilty given [his] intention was not to kill [MM]when [he] took her off her bike". He also acknowledged in writing that by entering aplea of guilty to attempted murder he would limit Ms Clifford's ability "to put forwardmitigating factors on [his] behalf at sentencing".[35] Mr Hughes appeared in the Timaru District Court on 23 May and pleadedguilty to the charge of attempted murder and the other offences we have listed at [1].The District Court declined to sentence Mr Hughes and transmitted his case to theHigh Court so that a sentence of preventive detention could be considered.[36] Also on 23 May, Detective Coulter executed a search warrant at the home ofMr Hughes' mother. There, a copy of a letter from Mr Hughes to his mother wasfound. In this letter Mr Hughes said that he had been watching "Born To Kill"documentaries on television and that he "could easily do some of those things andeasily end up with 20 life sentences". He also told his mother that for a long time hehad obsessed about "murdering alot of people" and that he used to write down lists ofnames of people who he had wanted to kill and that these were "real thoughts", whichhe "planned out in [his] head over and over again". He also said that when he was 16he was going to kill his former girlfriend.[37] In his letter to MM's parents Mr Hughes said that he "thank[s] God that therewas someone who saw what happened and came across the road to help [MM]".Pre-sentence reportsPsychiatric reports[38] In a psychiatric report dated 4 July 2014, Drs Panckhurst and Monasterioconcluded:(a) Mr Hughes did not suffer from any mental disorder. He did, however,present with a number of anti-social traits including "a pervasive lackof empathy for others and absence of remorse in relation to [his] pastoffending".(b) The offending on 3 December occurred in the context of Mr Hugheshaving smoked a significant quantity of synthetic cannabis.(c) Mr Hughes had a history of homicidal ideation. He had thoughts ofkilling someone for a number of years, but he was unwilling to providefurther details. He did say he was glad he was disrupted by the witnesswho saw him drag MM over the barbed-wire fence.(d) Mr Hughes was assessed as presenting "a high ongoing risk to othersprimarily driven by [his] anti-social personality structure and use ofpsychoactive drugs".Psychological reports[39] Mr Carlyon, a clinical psychologist, prepared a report pursuant to s 88 of theSentencing Act 2002 to assist the High Court when determining whether or notMr Hughes should be sentenced to preventive detention. The key relevant matters inthat report may be summarised in the following way:(a) There was no evidence Mr Hughes suffered from a mental disorder.(b) Mr Hughes "has a significant propensity to deceive others" and his"style of interpersonal connection was superficial and he wasgrandiose in some respects".(c) He had a "significant and concerning history of homicidal ideation" andhe "could give no assurances that he would not seek to harm or killothers in the future".(d) Mr Hughes disclosed he had given serious consideration to killing twopeople prior to his abduction of MM.(e) Mr Hughes told the psychologist that when he saw MM bicycling pasthim he "'wanted to see what would happen' in respect to enacting hishomicidal thoughts He remembered the victim looking 'like an easytarget' and [he was] aware he could overpower her with ease". He saidwhen MM rode back to him "he felt a sense of inevitability and that heneeded and wanted to kill her". Mr Hughes said, "I'm lucky the[witness] intervened or else the girl would be dead".(f) Mr Hughes lacked empathy for MM and did not demonstrate remorse.(g) Mr Hughes was assessed as being "a very high risk of violentreoffending" because of his familiarity with violence, his lack ofempathy and his homicidal ideations.(h) The prognosis for "effective intervention" was described as being"poor".[40] Ms Kingi, a clinical psychologist, prepared two reports to assist the High Courtwhen sentencing Mr Hughes. The following are the key points set out in Ms Kingi'sfirst report:(a) Mr Hughes said when he was at school he punched a teacher twice,fracturing the victim's eye socket.(b) He explained two incidents in which he had considered killing friends.Ms Kingi thought those incidents suggested "a degree of callousness"on the part of Mr Hughes.(c) When describing his attempt to murder MM, Mr Hughes said when hesaw her riding down the road he thought he "could get away with killingher". He said he told the police the truth when he was interviewed on21 May, and that he was glad the witness intervened "as it stopped himfrom spending the rest of his life in prison".(d) Without psychological treatment Mr Hughes was at "high risk offurther general and violent offending".[41] In her second report, Ms Kingi said:Mr Hughes' offending involved the attempted murder of a young femalevictim who was unknown to him when acting out a fantasy that is reinforcedby the excitement he feels. This is an entrenched fantasy that he has plannedto act out on more than just this occasion. Mr Hughes' victims are likely toinclude friends, acquaintances, or strangers, particularly vulnerable women.He has no history of weapons use, though he has acquired firearms fromburglaries[.] Mr Hughes has previously planned to kill a friend with a firearmobtained in a burglary. He also carried a machete in the car he was driving atthe time of his arrest. To date, his assaults have only involved the use of hisfists and manual strangulation. However, I consider him at risk of using aweapon and he has planned to do so. Mr Hughes is at risk of killing somebodygiven that the most recent attack was only prevented from being fatal by theintervention of a bystander.[42] Ms Kingi was in no doubt Mr Hughes presented a "high risk of violentreoffending" and that he has shown a pattern of escalating violence starting with aphysical assault on a teacher, a practice run for a potentially fatal attack on one of hisfriends "finishing with an actual attack which could have been fatal had he been leftundisturbed with his victim".Pre-sentence report[43] When interviewed by a probation officer for the purposes of preparing the pre-sentence report, Mr Hughes said:As soon as I saw [MM], straight away, I thought that I could get away withkilling her I was thinking of how to approach her and I had the gun in theboot of my car and I thought [that] I could strangle her and take her in the carand shoot her. It was exciting and I was a little bit angry, but I don't knowwhy. I would have killed her. Sometimes I don't think about killing peoplefor weeks, but then I start thinking about that kind of stuff.We interpolate to note that the gun found in Mr Hughes' car was not able to be fired.Previous convictions[44] Mr Hughes had 23 previous convictions in the District Court and 25appearances in the Youth Court. Most of his convictions were for dishonesty offences,including burglary, stealing vehicles and thefts. In November 2012, Mr Hughes wassentenced to 10 months' imprisonment for burglary and unlawful taking of a motorvehicle. He has also been sentenced to shorter terms of prison sentences for otheroffences. His offending on 3 December occurred a matter of months after he had beenreleased from prison and while he was still subject to release conditions.Sentencing decision[45] Mr Hughes refused to enter the courtroom for his sentencing hearing. Heapparently did not want to see MM or members of her family and hear them read theirvictim impact statements.[46] Ms Clifford appreciated the pre-sentence reports placed Mr Hughes at seriousrisk of a sentence of preventive detention. She prepared written notes, which she reliedon when making her oral submissions. Mr Hughes obtained a copy of those notes andannexed them to one of the affidavits he has filed in this Court. On the basis of thosenotes Ms Clifford confirmed that she likely submitted to Heath J that: it would be dangerous for the Court to impose a sentence of[preventive detention] based on the disclosures the prisoner has made in agrandiose fashion to the report writers. These anecdotes are uncorroboratedand with respect to the two previous plans to kill others, the prisoner's mostrecent instructions to me are that he made this up. It is acknowledged that theCourt may see the timing of that advice as convenient however I must bring itto the Court's attention given the reliance on the prisoner's statements assupporting a longstanding history of homicidal ideation.[47] Notwithstanding Ms Clifford's submissions, Heath J was satisfied a sentenceof preventive detention needed to be imposed in order to protect the community fromMr Hughes.2[48] Heath J indicated that absent a sentence of preventive detention, Mr Hugheswould have received a determinate sentence of six years and nine months'imprisonment.3 During the course of his sentencing decision, Heath J said:4Considerations that militate against the imposition of preventive detentioninclude Mr Hughes' age; namely 20 years at the time of the offence. Againstthat [are] other factors, one of which is that the Court has no jurisdiction tomake an extended supervision order after release which would otherwisefavour a finite sentence.We will return to the issue of an ESO at [86]–[87].[49] When explaining the MPI of five years, Heath J said:5That will provide some incentive for Mr Hughes to address his underlyingpsychological problems in an endeavour to obtain a release from prison soonafter the five years has expired, albeit subject to conditions of parole for therest of his life. I incorporate within those comments the need to address issuesof substance abuse.2 At [45].3 At [34].4 At [38].5 At [46].Notice of appeal and Parole Board hearings[50] Mr Hughes filed his notice of appeal against conviction and sentence on5 December 2018, almost four years after he was sentenced. Mr Hughes was notrepresented when he filed his notice of appeal although he had received legal advice.Mr Hughes explained he filed the notice of appeal after he learnt another prisoner hadhis sentence of preventive detention quashed and substituted with a determinate periodof imprisonment. Mr Hughes was referring to this Court's judgment in Grant v R,6which was delivered on 19 December 2017.[51] Mr Hughes first appeared before the Parole Board in December 2018. He wasnot seeking parole at that time. Instead, his objective was to put in place rehabilitativeprogrammes. The Parole Board considered a new report prepared by Mr Carlyon, whoadvised the Parole Board Mr Hughes continued to pose a very high risk of furtherserious offending, including violence. Mr Carlyon noted:Mr Hughes has repeatedly demonstrated his capacity for violence, disregardto the rights and needs of others, egocentric focus and an ability to deceiveand manipulate others.[52] Mr Carlyon recommended Mr Hughes be referred "for the most intensive, longduration rehabilitation provided in the prison system". In its decision the Parole Boardrecommended rehabilitation programmes be put in place for Mr Hughes.[53] Ms Webby, a clinical psychologist, prepared a further psychological report inrelation to Mr Hughes in September 2020. Four points emerge from her report:(a) Because Mr Hughes was pursuing an appeal to this Court, his proposedrehabilitation programmes had not been put in place by theDepartment of Corrections.(b) Mr Hughes "reported that he was not sure what he would have done tothe victim if he had been successful in kidnapping her. Mr Hughesacknowledged previously lying to assessors and therefore it is possiblethat he is continuing to be deceptive in his current presentation".6 Grant v R [2017] NZCA 614.(c) Ms Webby thought Mr Hughes' offending against MM arose becausehe wanted "to seek novel stimulation and experience, and within thecontext of normalised violence, he saw the commitment of a homicideas an almost inevitable experience to be had".(d) Mr Hughes continued to present as a very high risk of serious violentoffending.[54] When Mr Hughes appeared before the Parole Board in December 2020, itrecommended the Department of Corrections offer him an opportunity to participatein rehabilitation programmes notwithstanding he was pursuing his appeal againstconviction and sentence. We understand that Mr Hughes has still not completed anymeaningful rehabilitation programmes whilst his appeal is pending, as we note at [92]below.Appeal against convictionPrinciples[55] Mr Hughes has applied for an extension of time in which to file his appeal.That application is made pursuant to s 231(3) of the Criminal Procedure Act 2011.The onus is on Mr Hughes to establish that it is in the interests of justice to extendtime to appeal.7 Relevant factors include, the length of the delay in filing the noticeof appeal, the reasons for the delay, the nature of any prejudice to the Crown ingranting an extension, the merits of the proposed appeal and the fact the proposedappeal is against a sentence of preventive detention.[56] Appeals against conviction following a plea of guilty are only entertained inexceptional circumstances. In R v Le Page, this Court identified three broad categoriesof case in which an appeal against conviction following a guilty plea might beallowed:87 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Davis [2007] NZCA 577 at [13].8 R v Le Page [2005] 2 NZLR 845 (CA) at [17]–[19].(a) If the appellant did not appreciate the nature of the charge, or did notintend to admit his guilt.(b) If, on the admitted facts, the appellant could not have been guilty of theoffence charged.(c) If the plea was induced by a ruling which embodied a wrong decisionon a question of law.[57] In Wilson v R, the Supreme Court noted that the three categories of casereferred to in Le Page v R were not complete.9 In Merrilees v R, this Court added afourth category where trial counsel provides incorrect advice on the availability ofdefences or potential outcomes.10 The overall consideration is whether a miscarriageof justice would go unremedied if the guilty plea stands.11[58] Mr Hughes has failed to provide any convincing explanation for the delay infiling his notice of appeal. We will, however, extend the time for Mr Hughes to appeal.We do so because:(a) Notwithstanding the fact some of Ms Clifford's file notes and the DVDrecording are missing, the Crown is not prejudiced by the absence ofthose items.(b) Mr Hughes did not have legal advice until he filed his appeal.(c) The attempted murder conviction and the sentence of preventivedetention are, by any assessment, significant and have profoundimplications for Mr Hughes.9 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104].10 Merrilees v R [2009] NZCA 59 at [34].11 See also Mills v R [2020] NZCA 88 at [21]–[23]; Halpin v R [2018] NZCA 477, [2019] NZAR483 at [20]; and Whichman v R [2018] NZCA 519 at [33]–[41].Merits of the conviction appeal[59] We received two affidavits from Mr Hughes and affidavits from Ms Lock,Ms Clifford, Senior Constable Hampton and Detective Coulter. They were cross-examined. We also received affidavits from Dr Schep, who described the effects ofsynthetic cannabis, and Dr Gilbert, who provided evidence about the influence ofgangs in New Zealand prisons. Neither Dr Schep nor Dr Gilbert were required forcross-examination. The Crown accepted their evidence was credible and cogent andthat it should be admitted as fresh evidence.Mr Hughes[60] The essence of Mr Hughes' evidence is that on 21 May 2014, he falselyconfessed to having attempted to murder MM because of three factors.[61] First, Mr Hughes said that at the time he was on remand he was a prospect forthe Head Hunters gang. He wanted to join that gang because membership of theHead Hunters would provide him with protection from violence and harassment inprison. Mr Hughes explained that he was required to submit to gang members all ofhis paperwork, including the summary of facts. He said he was concerned that thereference in the summary of facts to him having been sexually motivated to offendagainst MM would result in him being rejected by the Head Hunters and subjected toviolence from prisoners because child sex offenders are treated very harshly in prison.[62] Second, Mr Hughes says he was coerced by police into making a falseconfession on 21 May because of:(a) the way Constable Hampton and Detective Coulter pressured him;(b) his concern that he not be labelled as a child sex offender; and(c) his belief the police would transport him back to Christchurch Men'sPrison on 21 May if he confessed.[63] Third, Mr Hughes maintains Ms Clifford failed to properly represent him. Theallegations against Ms Clifford can be distilled to the following points:(a) She lacked the appropriate Legal Aid classification to representMr Hughes.(b) She erred by allowing Mr Hughes to plead guilty two days after heconfessed to attempting to murder MM.[64] For completeness, we also note it is alleged Ms Clifford failed to properlyrepresent Mr Hughes at his sentencing. In particular, she failed to properly explainMr Hughes may have exaggerated his prior offending and his homicidal ideations. Wewill return to this complaint when considering the sentence appeal.[65] We had the benefit of observing Mr Hughes as he was cross-examined byMs Brook. His answers to some of her questions was revealing. Although Mr Hughesnow endeavours to minimise his motives when he abducted MM by saying he doesnot recall his intentions, when Ms Brook asked him whether he "probably would havekilled [MM]", he responded that he "could of". Ms Brook put to Mr Hughes that "itwasn't going to end well for [MM] though, was it?". His chilling response was"[p]robably not".[66] Mr Hughes' claim he falsely confessed to having intended to murder MM hasto be assessed in the context of the following facts:(a) He has given six conflicting accounts about his role and motivations inrelation to the events that unfolded on 3 December 2013. Mr Hugheshas difficulty in adhering to the truth and demonstrates a strongpropensity to say whatever he thinks is in his best short-term interests.(b) He not only confessed to the police that he intended to murder MM, hemade similar admissions to the author of the pre-sentence report, thehealth assessors who prepared comprehensive reports for theHigh Court and in his letter to his mother. He also confirmed toMs Clifford that the admissions he made to the health assessors werecorrect.[67] We accept Mr Hughes may have feared reprisals in prison if he were labelledas a child sex offender. The details of his offending that he grabbed a 13-year-old offher bike, choked her with sufficient force that she lost consciousness and with theintention of taking her elsewhere to strangle her to death would likely have led hisfellow prisoners to regard his offending as despicable. His concern about fearedreprisals in prison however, is far from determinative.Police officers[68] There is no merit in the claim Mr Hughes was coerced into making a falseconfession by the police. While we are concerned Senior Constable Hampton did notcaution Mr Hughes before talking to him on the morning of 21 May, by that stageMr Hughes had already resolved to make a further statement to the police.[69] Mr Hughes claimed Detective Coulter intimidated him by raising her voiceduring the interview and banging on the interview room table. Significantly, however,when Ms Clifford reviewed the DVD recording of the interview, she saw no signs ofinappropriate conduct by Detective Coulter. On the contrary, Ms Clifford wassurprised by how willingly Mr Hughes wanted to talk to Detective Coulter.[70] The suggestion Mr Hughes made a false confession because Detective Coulterdeceived him into saying she would drive him back to Christchurch Men's Prison afterhis interview is also misconstrued. Mr Hughes was only detained in the Timaru policecells through to 23 May because he decided to enter guilty pleas in the District Courtas soon as possible. After he made his admissions to Detective Coulter, Mr Hughesinstructed Ms Clifford to arrange for him to appear in the District Court in thefollowing days. That is the only reason why Detective Coulter did not drive him backto Christchurch Men's Prison on 21 May.Ms Clifford[71] The allegation Ms Clifford failed to competently advise and representMr Hughes is also devoid of merit.[72] Ms Basire, counsel for Mr Hughes in this Court, emphasised Ms Cliffordlacked the requisite Legal Aid classification when she represented Mr Hughes. Whileit is correct Ms Clifford was not categorised as a PAL 4 Legal Aid lawyer when sherepresented Mr Hughes in the High Court, she was undoubtedly an experiencedcriminal law lawyer. More significantly, however, it is abundantly clear Ms Cliffordspent considerable time advising Mr Hughes not to talk to the police on 21 May andthat she acted entirely appropriately when she complied with his instructions that hebe given the opportunity to enter a plea of guilty as soon as possible to the attemptedmurder charge.[73] Although allegations of trial counsel competence have become very frequent,rarely does this Court see instances of genuine trial counsel incompetence and it doesnot hesitate to respond appropriately when trial counsel errors cause a miscarriage ofjustice.[74] In the present case, Ms Lock and Ms Clifford were required to give evidencebefore us and defend their conduct. They should not have had to do so. As we havemade clear, Mr Hughes had the benefit of diligent, frank and very professional adviceand representation. This case was the antithesis of trial counsel incompetence.[75] Mr Hughes' proposed appeal falls outside the categories of cases identified inLe Page v R and Merrilees v R as justifying an appeal against conviction following aguilty plea. He has also failed by a considerable margin to establish a miscarriage ofjustice will go uncured if his conviction is not quashed.[76] The appeal against conviction has no merit and is dismissed.Appeal against sentence[77] To succeed in his sentence appeal Mr Hughes must demonstrate either:(a) that the sentencing Judge failed to apply the statutory criteria thatgovern the imposition of a sentence of preventive detention; or(b) that the sentence was manifestly excessive.12[78] Before addressing these criteria, we will briefly return to the criticisms ofMs Clifford's representation of Mr Hughes at sentencing.[79] It is very clear Ms Clifford canvassed the pre-sentence reports withMr Hughes. She explained in her evidence that when she asked Mr Hughes about thereferences to his homicidal ideations referred to in the health assessors' reports, hisinstruction to her was that the information in those reports was correct. Ms Cliffordwanted to obtain a further health assessor's report, but Mr Hughes was not interestedin one as he said the information contained within the existing reports was accurate.[80] It is also clear to us that Ms Clifford said all that could have been said on behalfof Mr Hughes when he was sentenced. In particular, Ms Clifford did submitMr Hughes may have exaggerated his earlier offending and his homicidal ideations.[81] The criteria for a sentence of preventive detention are set out in s 87(2) of theSentencing Act. Before a defendant can be sentenced to preventive detention theymust have:(a) Been convicted of a qualifying sexual or violent offence. Attemptingto murder is a qualifying violent offence.(b) Been 18 years of age or older at the time of the offending.12 Criminal Procedure Act 2011, s 250; and see generally Tutakangahau v R [2014] NZCA 279,[2014] 3 NZLR 482.(c) Been likely to commit another qualifying sexual or violent offence ifreleased at the sentence expiry date.[82] Section 87(4) of the Sentencing Act states:(4) When considering whether to impose a sentence of preventivedetention, the court must take into account—(a) any pattern of serious offending disclosed by the offender'shistory; and(b) the seriousness of the harm to the community caused by theoffending; and(c) information indicating a tendency to commit serious offencesin future; and(d) the absence of, or failure of, efforts by the offender to addressthe cause or causes of the offending; and(e) the principle that a lengthy determinate sentence is preferableif this provides adequate protection for society.Pattern of serious offending[83] Ms Basire submitted that Heath J was misled into believing Mr Hughes had apattern of serious offending because he exaggerated to at least one of the report writersthe extent of the injuries caused to Mr Hughes' teacher when Mr Hughes assaultedhim. It was submitted that if s 87(4)(a) of the Sentencing Act had not been satisfied,then the sentence of preventive detention would have to be quashed.[84] Apparently, Mr Hughes did not break the socket of his teacher's eye, despitewhat he told the report writer, Ms Kingi. Nevertheless, regardless of whether or notthe teacher's eye socket was fractured, the fact Mr Hughes assaulted the teacher andhad taken steps to kill two of his friends demonstrated a pattern of serious offendingand therefore satisfied the criteria in s 87(4)(a) of the Sentencing Act.Homicidal ideations[85] Ms Basire submitted Mr Hughes falsely claimed to have had homicidalideations. We reject that submission. It is striking how frequently Mr Hughesconfessed to wanting to kill someone. His confessions were not just to the writers ofthe health reports and the pre-sentence report. Mr Hughes' acknowledgement to hismother that he had prepared lists of people whom he wanted to kill is a very disturbingfeature of this case.ESO[86] It transpired that the jurisdiction to impose an ESO came into force on the dayMr Hughes was sentenced. It was therefore possible to consider the option of an ESObeing imposed at the conclusion of a determinate sentence.[87] Before an ESO could have been imposed, however, the Court would need tohave been satisfied Mr Hughes demonstrated a "pervasive pattern of violentoffending", which is a higher threshold than required to satisfy s 87(4)(a) of theSentencing Act.13 The information contained in the health assessor reports suggestsMr Hughes would not have met that criterion. Accordingly, no material error occurredwhen Heath J did not consider the possibility of an ESO being imposed at theconclusion of a determinate sentence.Rehabilitation[88] There are two aspects to this part of Ms Basire's submission:(a) She contends Heath J failed to adequately consider Mr Hughes hadnever previously received the benefit of rehabilitation programmes.(b) She contends the Judge failed to properly consider Mr Hughes' age andhis prospects for rehabilitation.[89] So far as the first of these arguments is concerned, the criteria in s 87(4)(d) ofthe Sentencing Act is "the absence of, or failure of, efforts by the offender to addressthe cause or causes of the offending".13 Parole Act 2002, s 107I(2)(a).[90] It is noticeable, however, that Mr Hughes failed to respond to supervisionrequirements following his previous sentences. He has a history of breachingcommunity-based sentences and he offended while subject to release conditions.[91] At the time of sentencing Mr Hughes had not sought, and therefore had notobtained, professional assistance to address his homicidal ideations and his lack ofempathy.[92] From what we can ascertain, Mr Hughes has still not been able to address hispsychological problems, although we accept part of the reason for this unfortunatestate of affairs is the reluctance of the Department of Corrections to offer Mr Hughesaccess to appropriate rehabilitation programmes whilst his appeal is pending. What isclear however from Ms Webby's most recent report is that after having spentapproximately eight years in prison, Mr Hughes continues to pose a serious risk ofcommitting another violent offence.[93] The second of the arguments we have summarised as [88] does not gaintraction. Heath J was acutely aware of Mr Hughes' age and the Judge would havebeen reluctant to impose a sentence of preventive detention on a young man. AsHeath J accurately observed, however, the advantage of preventive detention is that itplaces the onus on Mr Hughes to demonstrate to the Parole Board he can safely returnto the community. In this case the safety of the community is the paramountconsideration.Effects of synthetic cannabis[94] The sentencing Judge did not have the benefit of the information we now havefrom Dr Schep to the effect that synthetic cannabis may have influenced Mr Hughes'judgement on 3 December 2013. However, s 9(3) of the Sentencing Act provides thatthe Court must not take into account by way of mitigation the fact that an offenderwas, at the time of committing the offence, affected by the voluntary consumption oruse of alcohol or any other drug or substance (other than a drug used for bona fide andmedical purposes). Thus, no error occurred when the Judge sentenced Mr Hugheswithout the benefit of the information we have received from Dr Schep.Conclusion[95] Heath J properly applied the legislative criteria governing the imposition of asentence of preventive detention. Furthermore, preventive detention was a consideredand proportionate response to Mr Hughes' offending and his circumstances. Thesentence imposed was not manifestly excessive.Result[96] The application to extend time for filing the appeal is granted.[97] The application to adduce further evidence is granted.[98] The appeal against conviction and sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent