PARKER v R [2020] NZCA 424

PARKER v R [2020] NZCA 424 [17 September 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA590/2018[2020] NZCA 424BETWEEN CLAUDE DAVID PARKERAppellantAND THE QUEENRespondentHearing: 18 May 2020Court: Cooper, Duffy and Edwards JJCounsel: D S Niven for AppellantZ R Johnston for RespondentJudgment: 17 September 2020 at 12 pmJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeals against both conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The appellant Claude Parker was tried before a Judge in the District Court atManukau,1 on charges of assault with intent to commit sexual violation,2 and indecent1 R v Parker [2017] NZDC 18720 [District Court judgment].2 Crimes Act 1961, s 129(2): maximum penalty 10 years' imprisonment.assault.3 The complainant was his flatmate. She claimed that Mr Parker held her downon the bed and told her he was going to rape her. She said she fought him off and hestopped. Mr Parker, who gave evidence at the trial, denied the alleged events hadoccurred. He said there had been no sexual contact between him and the complainant.[2] The trial therefore involved a contest about the credibility and reliability of thecomplainant on the one hand, and Mr Parker on the other. Judge Moala thought thatthe complainant's evidence was credible and reliable and rejected Mr Parker'saccount.4 She held the Crown had proved the essential ingredients of the chargesbeyond reasonable doubt and convicted Mr Parker accordingly.5 On appeal againstthe conviction, Mr Niven submits that the Judge erred because she:(a) failed to give proper weight to relevant factual matters that raisedan evidential basis for a defence of consent or a reasonable belief inconsent;(b) failed to direct herself on the possibility of consent or a belief onreasonable grounds in consent, the absence of which the Crown wasrequired to prove beyond reasonable doubt; and(c) had been improperly influenced by her knowledge of Mr Parker'sprevious convictions when assessing his credibility.[3] Having convicted Mr Parker, the Judge declined jurisdiction to sentence himin light of his previous convictions. He was transferred to the High Court where hewas sentenced by Whata J, who imposed a sentence of preventive detention.6On appeal against the sentence, Mr Niven argues that the Judge erred because he:(a) under-emphasised the significance of Mr Parker's willingness toundergo rehabilitation programmes and expert opinion about theavailability and effectiveness of suitable programmes; and3 Section 135: maximum penalty seven years' imprisonment.4 District Court judgment, above n 1, at [13] and [28].5 At [58].6 R v Parker [2018] NZHC 2035 [Sentencing judgment] at [41].(b) failed to give due consideration to the possibility of a finite sentence ofimprisonment combined with the use of extended supervision ordersunder the Parole Act 2002.[4] In the result, the sentence imposed is said to be manifestly excessive.[5] Mr Parker's appeal was filed 15 working days out of time. That delay is notsignificant and has not caused prejudice to the Crown. We grant an extension of timeaccordingly.Relevant facts[6] In March 2016, the complainant was living with her partner at his parents'address in South Auckland. Mr Parker also resided there as their flatmate. On the dayof the alleged offending only Mr Parker and the complainant were present at thehouse: the complainant's partner was at work and no one else was home.Complainant's evidence[7] The Judge summarised the complainant's evidence. On her account she waswoken up by loud music at about 11 am and got up to investigate what was happening.Mr Parker was listening to music on the front porch of the house. She recalleda conversation with him about going "shopping"; by this she meant shoplifting.They went to a supermarket where they met some people known to Mr Parker, wholater came to the house to consume alcohol and smoke synthetic cannabis. She didnot consume any synthetic cannabis, and her evidence was that she did not drinkalcohol or consume drugs when her partner was not at home. Left alone withMr Parker, the complainant said she decided to go into her bedroom to tidy up beforeher partner came home from work. This she described as part of her "daily duty". Shesaid that at this stage Mr Parker was drunk and "talking stupid".[8] Not long after she had gone to the bedroom, Mr Parker entered the room andpushed her down on the bed. The Judge recounted the complainant's evidence of whatfollowed:77 District Court judgment, above n 1.[22] She landed face-down. She managed to tum on the bed so she waslying on her back. He got on top of her. She said "what the fuck are youdoing?" He responded by saying "I'm going to fucken rape you bitch".She then told him "get the fuck off me now or I'm gonna fucken tell on you".Throughout the incident, she repeatedly told him she would tell on him.[23] He used his hands to pull her pants and underwear down to her knees.He then tried to get his fingers into her vagina but he couldn't because ofthe way she was moving around on the bed. She said he used his fingers andtried to rub her vagina and tried to push his fingers inside her. At the sametime, she was holding her thighs together and moving around and trying to getup. This is why he could not put his fingers inside of her. She told him to"get the f-off". He licked her face and tried to kiss her. He pulled down hispants and underwear. His penis was hard and she could feel it on her. He waslying on top of her and tried to push his penis inside her vagina. She keptfighting him off. She pulled her legs together and tried to push him away byplacing her hands on his collarbone and pushing him away. She explainedthat this is what the police used to do to her when she was younger and resistedarrest. She thought that this might work to get him off her. She described howshe crossed her legs together and squeezed her thighs tight to keep her privatepart closed from him. She did all she could to make sure he could not forceentry into her.[24] Throughout the incident she was yelling at him and swearing.She says that because she has a big mouth, she screamed so the neighbourswould hear that something was happening to her.[25] He ended up getting off her because she kept yelling at him. He thentried to bribe her with methamphetamine and money. He told her he wouldgo and steal some meat to pay her money so she wouldn't tell her partner whathe had done. She refused to agree to the bribe. He then left the address in hiscar.[26] When asked what made him stop, she said he could not get anythinginside of her, not even his fingers. She was yelling and screaming and tellinghim that she was going to tell. She said obviously he gave up because herealised that something was going to happen to him because of what he wastrying to do to her.[9] After Mr Parker left, the complainant ran next door. She told a friend and herpartner what Mr Parker had done. They came back to the house after Mr Parker hadleft. She called her partner and he came home. They discussed what they should do.They decided to telephone the police. The constable who was directed to speak withher had trouble getting hold of her but eventually met up with her at 10 pm that nightat her home address before taking her to the police station for an interview.[10] The police spoke to Mr Parker a couple of days later, when he denied theallegations.The defence case at trial[11] The Judge recorded that Mr Parker had given a very different account in hisevidence at the trial. On his account, he and the complainant had driven to a housewhere they would be able to purchase synthetic cannabis. Once there, the complainanthad gone into the house to purchase synthetic cannabis with money he gave her. Theythen returned home and both smoked it. He drank throughout the day.[12] According to Mr Parker, two friends (a male and his partner) arrived atthe address. They also consumed synthetic cannabis and alcohol. Later he went fora ride with them and was away for a couple of hours. When they returned to the house,they continued to drink and smoke on the veranda. Subsequently, he left and"cruised around" in his car for about an hour, stopping at a service station to get petrol.The defence produced photographs of him at the service station. He said from thatpoint he did not go back home, because he was out looking for his partner who hadleft the address a couple of days before.[13] The Judge noted Mr Parker's evidence that nothing had happened between himand the complainant. He never went into her bedroom, and he never touched her ortried to rape her as she claimed. The Judge summarised the defence case as being thatthe complainant had made the allegations up. She was diagnosed with a psychoticdisorder and had a history of drug-induced psychosis. She was so unwell that she wasbeing managed under the Mental Health Act,8 and had to take monthly injections ofmedication. The defence claimed that she had smoked synthetic cannabis on the dayand fabricated the incidents. Reference was made to a history of acting in a bizarremanner, having disorganised thoughts and being paranoid.Conviction appealConsent and reasonable belief in consent[14] As noted above, the first two bases upon which the conviction appeal isadvanced are related to the possibility that the complainant consented to Mr Parker'sconduct. It is said that the Judge did not properly weigh relevant factual matters that8 Presumably the Mental Health (Compulsory Assessment and Treatment) Act 1992.raised an evidential basis for a defence of consent or a reasonable belief in consent,and that she failed to direct herself on the possibility of consent or belief on reasonablegrounds that there was consent.[15] It is convenient to deal with both of these grounds together. Mr Niven submitsthat there was a plausible narrative for a defence of consent or a reasonable belief inconsent on the basis that:(a) The complainant was in a relationship with another person at the timeof the incident, which might have provided an incentive to describe anysexual contact with the appellant as having taken place without herconsent.(b) At the time of the incident the complainant was receiving treatment fora psychotic illness. She had previously falsely accused a stranger ofsexually interfering with her children at a play centre and on thisoccasion her illness might have caused her to misinterpret contactbetween her and Mr Parker.(c) The complainant avoided contact with the police for several hours afterthe incident. Her explanation was at least in part at variance with theevidence of one of the attending police officers.(d) There were a number of people who had contact with the complainantin the hours before and after the incident but either the police could notobtain their details, or they refused to make statements. In one instance,a statement had been made, but the witness failed to attend at court togive evidence.(e) Mr Parker was in a relationship with another person at the time ofthe incident, which might have provided an incentive for him to denyany sexual conduct rather than raise a defence of consent.(f) There was evidence that one of the neighbours wished to assaultMr Parker in response to the complaint, which Mr Niven claimed mayhave provided a further incentive for Mr Parker to deny any sexualcontact rather than raise the issue of consent.[16] Mr Niven submitted that in assessing the evidence in her written reasons,the Judge did not consider consent even though she had noted it as an element of bothcharges that the Crown was required to prove. He submitted it was clear the Judge didnot consider the twin issues of consent and/or reasonable belief in consent and that asa result Mr Parker was deprived of an available defence to the charges. These errorswere said to be contrary to decisions of the Supreme Court in Sena v Police andChristian v R.9 Mr Niven claimed that in accordance with those authorities a judge isobliged to address the issue of consent or reasonable belief in consent if there is anevidential foundation for it, even though (as in this case) it is not actively raised asa defence at trial.[17] We do not accept Mr Niven's submissions. The passage in Sena on which herelied requires that a judge's verdict should show an engagement with the facts,identify the critical issues in the case, explain how and why those issues have beenresolved and generally "provide a rational and considered basis for the conclusionreached".10 The Court noted that the language of s 232(2)(b) of the CriminalProcedure Act 2011 reflects an assumption that a judge's reasons will reflect thatjudge's assessment of the evidence and why that assessment resulted in a conviction.[18] There is no doubt in the present case as to why the Judge convicted Mr Parker.The Judge was faced with a straight contest as to credibility and she preferred theevidence of the complainant. Her preference was not expressed in conclusory terms.It was fully reasoned, and she carefully dealt with the issues raised by Mr Parker in anattempt to challenge the complainant's credibility and reliability.11 Equally, the Judgegave detailed reasons for rejecting Mr Parker's account.12 This was plainly in9 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575; and Christian v R [2017] NZSC 145, [2018]1 NZLR 315.10 Sena v Police, above n 9, at [36].11 District Court judgment, above n 1, at [28]–[56].12 At [13]–[18].accordance with what the Supreme Court said was required in Sena. The critical issuesin the case clearly did not engage the issue that counsel now attempts to raise, namely,whether the complainant consented to Mr Parker's sexual advances, or whether hemight reasonably have believed she was consenting.[19] The matters relied on by Mr Niven to suggest there was a plausible narrativefor consent, or reasonable belief in consent, ranged widely across the complainant'srelationships, her mental state, behaviour after the incident, her interactions with otherpeople, Mr Parker's relationship and a motive he might have had to deny sexualcontact. But none of the matters to which counsel refers contains an explicit or evenindirect suggestion that there might have been consensual sexual activity. Given thebasis on which the defence was run, it is not sensible to suggest that the Judge shouldhave seen in these tangential considerations the possibility that consent was an issuethat needed to be seriously addressed.[20] In such circumstances Christian cannot assist Mr Parker. In that case,this Court addressed the need, in cases involving sexual offending, to give directionsto juries on all elements of the offence with which the defendant is charged.13Relevantly, the Court observed that the directions do not need to be elaborate, but mustbe such as to ensure the jury is clear that a guilty verdict can be returned only ifthe Crown has proved beyond reasonable doubt that the complainant did not consent,and that the defendant did not believe on reasonable grounds that the complainantconsented. Significantly, the Court continued:14For example, it would be sufficient in a case where the defendant does notraise consent or reasonable belief in consent as issues for the Judge to outlinethose elements of the offence, record that the defendant has not raised an issuewith those elements but make it clear that the jury must nevertheless besatisfied beyond reasonable doubt that the complainant did not consent andthat the defendant did not reasonably believe he or she did.[21] Those observations were, of course, made with reference to the obligations ofthe Judge summing up to the jury. Counsel were not able to refer us to any authoritywhere the approach has been applied in the case of a judge-alone trial. However, in13 Christian v R, above n 9, at [35].14 At [36].accordance with the approach required by Sena, it is likely the reasons for the verdictwill often be in accordance with what was said in Christian, even if in modified form.[22] Here, where consent was not raised on the facts, the Judge neverthelessspecifically set out the elements of the offences with which Mr Parker had beencharged. Recognising that the case involved a straight contest about credibility,she then set out in detail why she preferred the complainant's evidence to that ofMr Parker. That necessarily dealt with any issue about consent or reasonable belief inconsent. That is plain from the complainant's narrative, which the Judge accepted.It allowed no room for consent, or reasonable belief in it. And the defence was thatnothing had happened. In the result the Judge specifically recorded that having regardto the complainant's evidence that she was "satisfied that the Crown [had] proven allof the essential ingredients of the charges beyond a reasonable doubt".15 No furtherelaboration was required.[23] These first two grounds of the conviction appeal cannot succeed.Knowledge of appellant's previous convictions[24] Immediately before the trial, the Judge was called upon to make a ruling onthe admissibility of the statement made by Mr Parker to the police. The defencesought to exclude comments made by Mr Parker to the effect that he had "just done12 years for rape, why would I come out and do this; no-one believes people with myrecord; what's assault to rape, if I wanted to rape her she would have been raped".[25] The Judge ruled the challenged portions of the statement inadmissible.However, Mr Niven submits that in the course of considering the application,the Judge would have become aware of Mr Parker's extensive history of convictions,which ran to some 17 pages. It included a conviction in 2003 for rape, for which hehad been sentenced to 12 years' imprisonment and a non-parole period of six years, aswell as a 1997 conviction for kidnapping.15 District Court judgment, above n 1, at [58].[26] The trial commenced some two days after the Judge dealt with the challengedstatement. The defence raised no objection to the Judge presiding. Mr Niven invitesus to assume that the Judge would have commenced the trial with full knowledge ofthe conviction history. He claims that in the circumstances of this case, wherecredibility findings were of central importance, there was a risk that the Judge hadbeen unable to fully put aside the knowledge gained during the pre-trial hearing.This may have "subtly but improperly" influenced the Judge when consideringthe credibility issues.[27] The issue raised is purely conjectural. There is no suggestion derived fromthe conduct of the trial, nor from the manner in which the Judge expressed her reasonsfor convicting Mr Parker, that she was affected by his criminal history.[28] In Butler v R, although in a different context, this Court rejected a submissionthat a judge who had read depositions which differed in scope and focus fromthe evidence adduced at trial could not objectively decide a charge. The Court said:16[10] Although he did not put it in quite this way, Mr Sainsbury'ssubmission was in essence that a Judge who has read the file before trial isunable to act as the trier of fact should a witness who has made a depositionthe content of which proves to be material not be called. He suggested theJudge should read the file in advance only if invited by counsel to do so.We reject that submission. A Judge who has dealt with a proceeding atan earlier stage is not normally disqualified unless there is some real groundfor doubting the Judge's ability to bring an objective judgment to bear:Jessop v R [2007] NZSC 96 at [6]. That case dealt with reasonableapprehension of bias, but a similar principle applies in a case such as this.The Court does not presume that a properly directed jury is incapable ofputting irrelevant or prejudicial material aside: R v Thompson [2006] 2 NZLR577 (CA & SC). There is still less reason to suppose that a Judge, whose dailywork routinely requires that evidence be segregated into that which isadmissible and that which is not, is incapable of basing a decision on theadmissible evidence alone. [29] Reference can also be made to this Court's judgment in S (CA134/2017) v R.17In that case, the appellant was convicted after separate trials of serious sexual and otherviolent offences against two women. One was his daughter and the other her mother(who was previously his partner). The trials were judge-alone, and were held back to16 Butler v R [2008] NZCA 287.17 S (134/2017) v R [2018] NZCA 380.back before Simon France J, who delivered separate verdicts at the end of the secondtrial. The appellant appealed against conviction, claiming that his trials were unfairbecause the same Judge had presided over them. The allegation was of apparent bias,not actual bias. The Court rejected that argument.18[30] In the course of its judgment, the Court in S v R referred to an earlier decisionof this Court in Hartley v R.19 In Hartley, the Court observed:[121] The allegation of apparent bias is without substance, as we will nowexplain. To begin with, the fair minded lay observer must be taken tounderstand something of the workings of the judicial system, and wouldunderstand that both before and during trial judges may be exposed toinformation unhelpful to a defendant. They may have to decide questions ofadmissibility of evidence, for example, or bail, and they will know ofthe defendant's criminal history. The fair minded observer would recognisethat judges possess independence and detachment, and are accustomed todetermining what information is relevant to any particular decision thendeciding the case based only on that information.[31] There is no reason to conclude that Judge Moala would have been unaware ofthe need to determine the factual context before her without reference to Mr Parker'scriminal history. This ground of the conviction appeal also fails.[32] It follows that the conviction appeal must be dismissed.Sentence appeal[33] Whata J sentenced Mr Parker in the High Court at Auckland on 10 August2018.[34] In accordance with the usual approach the Judge began by addressing the finitesentence that would be appropriate. He adopted a starting point of five and a halfyears' imprisonment, which he uplifted by six months for Mr Parker's previousconvictions and then deducted by four months for Mr Parker's recent commitment torehabilitation and reconnecting to his Māoritanga. The finite sentence so derivedwould be five years and eight months' imprisonment. The Judge also considered thata minimum term of imprisonment of 50 per cent would be appropriate in the case of18 At [11]–[13].19 Hartley v R [2014] NZCA 162.such a finite sentence, having regard to the ongoing risk that Mr Parker posed to thecommunity.20 We understand there are no issues with the Judge's approach to thispoint.[35] The Judge then turned to the matters he was obliged to take into account inconsidering whether to impose a sentence of preventive detention. These are set outin s 87(4)(a)–(e) of the Sentencing Act 2002. The Judge addressed (a)–(d), but not (e).He said:[35] In terms of these factors, I am satisfied that:(a) Your present sexual violence offending is part of a pattern ofserious offending commencing in 1996. Significantly yourtime in prison in large part separates the incidents of this typeof offending.(b) The harm caused by your offending is clearly serious.(c) The overwhelming impression left by the mental health reportsis that you represent a substantial risk of sexual violencereoffending.(d) Your previous attempts at rehabilitation and treatment have, forthe most part, failed.[36] Section 87(4)(e) contains another mandatory consideration namely"the principle that a lengthy determinate sentence is preferable if this providesadequate protection for society".[37] However, the Judge was clearly justified in reaching the conclusions under (a)–(d) which we have just quoted. Included in Mr Parker's long list of previousconvictions were two of a sexual nature. They were:(a) A conviction for detaining a woman without her consent and with intentto have sexual intercourse with her in February 1996. Mr Parker hadtaken the complainant in the car to an unpopulated area, pushedthe front seat forward, climbed onto the back seat with her, seized herby the face and shoulder and kissed her. The complainant tried to pushhim away. A police dog handler doing a routine patrol then intervened.20 Sentencing judgment, above n 6, at [28]–[33].A sentence of three and a half years' imprisonment (imposed followingtrial) was upheld by this Court on appeal.21(b) A conviction for sexual violation by rape in October 1996. On thatoccasion Mr Parker entered the house of a young woman who was aloneand asleep. She woke up and attempted to persuade him to leave.He told her to remove her clothes, punched her, dragged her downstairs,threatened her with a knife and raped her on the floor. He wasapprehended as a result of a DNA match in 2002. He was convictedafter trial and sentenced to 12 years' imprisonment.22[38] Mr Parker was released from prison on parole in November 2014 only some16 months before the offending in this case.[39] In sentencing, Whata J considered three health assessors' reports. One, bya psychologist, Ms Sanjeeta Sharma, noted that Mr Parker's negative experiences withhis grandmother and mother had left him with a hostile attitude towards women.He felt sexually entitled, an attitude likely reinforced by gang affiliations. Ms Sharmawrote that:Mr. Parker's unwillingness to address topics related to his sexual offendingmakes his prognosis for engaging and benefiting from any kind of sex offendertreatment poor at this point.[40] After applying standard risk assessment tools, Ms Sharma expressed the viewthat Mr Parker was "at high likelihood of sexually re-offending in a similar manner,following his release into the community". Further:Mr. Parker's pattern of offending and noted clinical factors of earlytraumatisation resulting in pervasive maladjustment, anti-social personalitydisorder, and impulsivity, denote a high risk for further anti-social and violentoffending in addition to sexual offences.[41] The second assessor's report was by Dr Ian Goodwin. He assessed Mr Parkeras in the "moderate-high risk" category, using a sex offender risk assessment21 Parker v R CA286/97, 2 October 1997.22 Parker v R CA197/03, 21 August 2003. Mr Parker's sentence included a minimum period ofimprisonment of eight years, which was reduced to six years on appeal to this Court.instrument (Static 99-R). He considered that Mr Parker's continual denial ofthe offending as well as his attitude toward the complainant were factors that furtheraggravated his risk. Mr Parker, was, in his opinion: at least a moderate to high risk of him committing similar serious offencesin the future.[42] The third report was from another psychologist, Ms Anja Isaacson. She hadbeen instructed by counsel for Mr Parker. Ms Isaacson agreed that Mr Parker's historyshowed a pattern of anti-social attitudes and behaviours, including a sense of sexualentitlement but, considering all the available information, she concluded there was noapparent pervasive pattern of sexually inappropriate behaviours and/or attitudes.Despite Ms Isaacson's observations, the Judge's conclusions which we have earlier setout were well justified on the basis of the reports by Ms Sharma and Dr Goodwin.[43] The Judge also had before him a report provided under s 27 of theSentencing Act prepared by Te Runanganui o Ngati Porou. The Judge noted that thereport confirmed observations in the health assessors' reports regarding Mr Parker'schildhood experiences. It also recorded attempts made by Mr Parker to engage withhis Māori heritage.23[44] Having reviewed all of the material, the Judge expressed his conclusion thatthe combination of the serious risk presented, and the lack of success from engagementwith treatment processes to date, meant that a cautious approach was required.In reaching that view, he had regard to the fact that the present offending occurredreasonably soon after Mr Parker's release for the rape offending. He did not haveenough information to be satisfied that the risks presented were capable ofmanagement or adequate mitigation by way of a finite sentence.24[45] The Judge continued:[38] Mr Parker, I regret that a less punitive response is not available to me.I would have much preferred to sentence you after you had completeda rehabilitative treatment plan so that I could have more surety as to whetheryou present the type of ongoing risk that preventive detention is designed toaddress. Unfortunately, however, while the reports identify a potential for23 Sentencing judgment, above n 6, at [22].24 At [37].change, that potential remains too intangible against the very real pattern ofyour serious sexual offending.[46] Consequently, the Judge sentenced Mr Parker to preventive detention onthe charge of assault with intent to commit sexual violation, and imposed the statutoryminimum period of imprisonment of five years.25 He also sentenced Mr Parker totwo years' imprisonment on the charge of indecent assault, the term to be servedconcurrently.26[47] First, Mr Niven focusses on submissions that the Judge had given insufficientweight to the significance of comments made by Mr Parker showing that he waswilling to engage in programmes aimed at his rehabilitation, and expert opinionregarding the availability and effectiveness of suitable programmes. Secondly,Mr Niven argues that the Judge had failed to give due consideration to the possibilitythat a finite sentence of imprisonment combined with an extended supervision orderwould appropriately mitigate the risk of re-offending.[48] On the first of those issues Mr Niven notes that Ms Isaacson had observed inher report that correctional rehabilitation programmes could support Mr Parker andenable him to realise his "underlying prosocial potential". She said Mr Parker hadpresented as motivated to engage in treatment and with professional support.However, she also acknowledged that Mr Parker had been assessed as being amongstthe group of offenders for whom change and reintegration back into society would be"slower and more challenging".[49] The Judge noted that the health assessors had recognised the need forMr Parker to receive specialist, intensive and culturally responsive treatment toaddress the risks he posed. He referred to recommendations that Mr Parker undertakethe Adult Sex Offender Treatment Programme, followed by a Drug TreatmentProgramme potentially within the Te Tirohanga National Programme which providestikanga-based services.27 But having regard to the advice of Ms Sharma andDr Goodwin the Judge was entitled to take the approach that, as he put it, the potential25 Sentencing Act 2002, s 89(1).26 Sentencing judgment, above n 6, at [41].27 At [21].for Mr Parker to change remained "too intangible against the very real pattern of [the]serious sexual offending".28 As the Judge also observed, preventive detentionprovided a proper mechanism for ensuring that Mr Parker would demonstrate thecapacity for change.29[50] It is correct that the Judge did not specifically consider the possibility of a finitesentence of imprisonment, combined with the use of an extended supervision orderunder the Parole Act. The failure to do so was a departure from the approach whichthis Court said was required in R v Mist.30 The Court said in that case, that there wasno doubt the possibility of an extended supervision order must be taken into account"when assessing the extent to which a lengthy determinate term will provide adequateprotection for the public".31[51] The difficulty in this case, which may have influenced the way the Judgeapproached the sentencing, is that the offending for which Mr Parker was beforethe Court, although serious and a qualifying offence for the purposes of s 87 ofthe Sentencing Act, was not such as would obviously attract a lengthy determinatesentence. There is no suggestion that the determinate sentence that the Judgeconsidered appropriate, of five years and eight months' imprisonment, was incorrect.The difficulty that the Judge then faced was that there was insufficient information forhim to be satisfied that the risks presented by Mr Parker could be adequately dealt withother than by a sentence of preventive detention. We expect it was for the same reasonthat the Judge did not specifically refer to s 87(4)(e) in his sentencing remarks. But inany event, the position was that the Judge could not be satisfied that a determinatesentence would adequately protect the public against the possibility that Mr Parkerwould in the future commit serious offences.[52] We think it likely that, had the Judge expressly dealt with the issue ofa determinate sentence coupled with an extended supervision order, he would havearrived at the same result. That would have been consistent with the logic of hisapproach. However, it would have been preferable had he expressly given28 At [38].29 At [37].30 R v Mist [2005] 2 NZLR 791 (CA).31 At [100].consideration to s 87(4)(e) and the availability of an extended supervision order.His failure to do so was an error for the purposes of s 250(2)(a) of theCriminal Procedure Act.[53] This means that we have to consider the issue ourselves. Having done so wehave not been satisfied that a different sentence from that imposed by the Judge wouldbe appropriate. We accept Ms Johnston's submission for the Crown that the case fora finite sentence with an extended supervision order would not have been appropriateto guard against the risk that Mr Parker would commit serious offences in the future.The ongoing protection afforded by the sentence of preventive detention was justifiedby the uncertainties inherent in Mr Parker's limited engagement with rehabilitativeprogrammes in the past and his ongoing denial of the current offending.[54] Preventive detention was also appropriate here on the basis discussed by thisCourt in Bryant v R:32 the real differences between the available sentencing approaches lie inthe discretionary element which attends the sentence of preventive detentionand in the circumstance of the eligibility of the offender to be recalledfollowing release. In essence the offender is subject to an indefinite term ofimprisonment because there is no sentence expiry date and the prisoner'srelease, therefore, is entirely at the discretion of the Parole Board:ss 82(3) and 28 of the Parole Act 2002. It may be said the offender controlshis own destiny. Successful participation in a course of treatment, such thathe will not pose an undue risk to the safety of the community if released, willbe determinative of his final release date. The advantage of this incentive bycomparison to the situation of a prisoner subject to a finite term is obvious.[55] In the circumstances, we have not been satisfied that a different sentence tothat imposed by the Judge would have been appropriate. This conclusion meansthe requirement in s 250(2)(b) of the Criminal Procedure Act is not satisfied.Consequently, the sentence appeal must be dismissed.33Result[56] The application for an extension of time is granted.32 Bryant v R CA236/03, 16 December 2003 at [23]. See also McDonald v R [2009] NZCA 248 at[45].33 Criminal Procedure Act 2011, s 250(3).[57] The appeals against both conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent