HEKE-GRAY v R [2023] NZCA 474

HEKE-GRAY v R [2023] NZCA 474 [29 September 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF THE COMPLAINANT IS PROHIBITEDBY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: ORDER MADE BY THIS COURT IN [2018] NZCA 153 PROHIBITINGPUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYINGPARTICULARS OF THE PROPENSITY OFFENDING VICTIM PURSUANTTO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS INFORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA633/2019[2023] NZCA 474BETWEEN JESSIE ARTHUR HEKE-GRAYAppellantAND THE KINGRespondentHearing: 1 May 2023Court: Gilbert, Thomas and Woolford JJCounsel: N P Chisnall KC and L A Elborough for AppellantZ R Johnston and B So for RespondentJudgment: 29 September 2023 at 2 pmJUDGMENT OF THE COURTA The application to adduce further evidence is granted.B The appeal against conviction is dismissed.C The appeal against sentence is allowed.D The sentence of preventive detention is set aside. A finite sentence of 15 yearsand one month's imprisonment is substituted.E The minimum period of imprisonment of seven years and six monthsimposed by the High Court is confirmed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Following a trial by jury in the District Court at Whangārei, Mr Heke-Graywas found guilty of 11 charges of sexual and other violent offending against the samefemale complainant over a two-week period commencing when they first met — oneof rape, five of sexual violation by unlawful sexual connection, one of assault withintent to injure, two of threatening to kill, one of threatening to do grievous bodilyharm, and one of unlawful possession of a firearm.[2] Mr Heke-Gray had earlier pleaded guilty to one charge of conspiring to pervertthe course of justice. This charge arose out of a telephone call he made from prisonasking an associate to find a witness to help him by giving perjured evidence and tooffer money to the complainant not to turn up to court.[3] The trial Judge, Judge McDonald, declined jurisdiction to sentenceMr Heke-Gray and transferred the matter to the High Court to enable consideration ofwhether a sentence of preventive detention should be imposed.1[4] Two health assessors (required pursuant to s 88(1)(b) of the Sentencing Act2002) gave evidence about the likelihood of Mr Heke-Gray committing a furtherqualifying sexual or violent offence. Their opinions were tested at a disputed factshearing before Whata J. The Judge was satisfied that the statutory criteria for asentence of preventive detention had been met and that such a sentence ought to beimposed. He accordingly sentenced Mr Heke-Gray to preventive detention on the rapecharge and ordered him to serve a minimum period of imprisonment of seven yearsand six months.2 Concurrent sentences were imposed on the other charges.[5] Mr Heke-Gray appeals against both conviction and sentence.[6] Mr Heke-Gray applies to adduce further evidence being a report dated17 March 2023 from Dr Brandon Birath, a neuropsychologist, who confirms an earlier1 Sentencing Act 2002, s 90.2 R v Heke-Gray [2019] NZHC 2841 [sentencing judgment].informal diagnosis (made when Mr Heke-Gray was aged 14) that he hasFoetal Alcohol Spectrum Disorder (FASD). Dr Birath addresses the implications ofthis condition in conjunction with Mr Heke-Gray's other diagnoses ofAttention-Deficit/Hyperactivity Disorder (ADHD) and Post-Traumatic StressDisorder (PTSD). Dr Birath's evidence is said to be relevant to whether, in respect ofthe rape and other sexual violation charges, Mr Heke-Gray held a reasonable belief inconsent.[7] The grounds of Mr Heke-Gray's conviction appeal are:(a) The fresh evidence available from Dr Birath has a material bearing onwhether Mr Heke-Gray's belief in consent was reasonable. There is areasonable possibility that more favourable verdicts would have beenreached if this evidence had been before the jury and there isaccordingly a real risk that justice has miscarried.(b) The Judge's directions on the issue of reasonable belief in consent wereincorrect, inadequate, or inappropriate.(c) The Judge's directions on the propensity evidence were deficient.(d) Trial counsel error, namely a failure to cross-examine the complainantabout a prior inconsistent statement.[8] Mr Heke-Gray appeals against the sentence of preventive detention contendingthat his risk of reoffending was lower than was assessed by Whata J. Mr Heke-Grayapplies to adduce a report from Dr Shanmukh Lokesh, a forensic psychiatrist, whoassesses Mr Heke-Gray's risk of committing a further qualifying sexual or violentoffence as being somewhat lower than the two health assessors who gave evidence inthe High Court and has better rehabilitative prospects than they assessed. He alsorelies on the fresh evidence from Dr Birath in support of this contention.The trialCrown case[9] Mr Heke-Gray and the complainant met on social media in September 2016.Mr Heke-Gray was then aged 32 and living in Whangārei. The complainant wasaged 26 and lived in Wellington. The complainant had recently broken up with herpartner who was threatening her and her parents with gang violence. She was lookingfor someone who could protect her. The initial arrangement was that the complainantwould pay Mr Heke-Gray for this service. However, the complainant was unable toarrange the money. Instead, she agreed to come and live with Mr Heke-Gray for amonth on the understanding that he could have sex with her. Prior to meeting, theyexchanged numerous sexualised messages, and the complainant sent him video chatsshowing her naked body.[10] On 12 October 2016, the day before the complainant took the bus to travelnorth to meet Mr Heke-Gray, they exchanged further sexually explicit messages onFacebook, including the following:[Mr Heke-Gray]Morning huniHowz my delectable pussy 2day ? .ready 2 get bent ova and fukd l[i]ke a dirtyslut ?? .lol[The complainant]Haha yes[Mr Heke-Gray]Yum .heads up to u my babez !!!I'm Guna SLAm ur ass deep[The complainant]Hehe nice[Mr Heke-Gray]Can I ram ur ass hole real hard baby ??Fukk I cant wait[The complainant]Haha can you use lots of lube?[Mr Heke-Gray]Does da thought of danger make u wet??[The complainant]Fuckin ay lol[Mr Heke-Gray]Shud do if ur a bad bitch !!U play fantasyz babe ??[The complainant]Yeah I can[Mr Heke-Gray]We cud act out sumfng later ..do u luv ruff vicious forced sex ??Xo[The complainant]Yeah I like it but just don't hurt me please[Mr Heke-Gray]Neva hurt u baby[The complainant]Thank you[Mr Heke-Gray]U have my wordUr my pride and joy rite at dis minute !![The complainant]Aw[Mr Heke-Gray]Don't mistake my intentionz hun !! . I.plan 2 keep u as myne 4eva !! .see howit goes 4 dis month and then take it from ther[e] !! .xoAll I want is da best 4 both of us !![The complainant]Ok baby xo[11] Mr Heke-Gray met the complainant at the bus stop in Whangārei on 13 October2016. He instructed her to drive to a beach. While she was driving, he took her phoneout of her handbag, demanded the PIN code to unlock her phone, and then wentthrough her phone. (He later threw away the SIM card and he controlled her phonethroughout the time they were together.) After arriving at the beach, Mr Heke-Grayassaulted her while she remained seated in the car, putting his hands all over her face,squeezing her face, slapping her, pulling her shirt up and biting her stomach.Mr Heke-Gray then inserted his fingers inside her genitalia and her anus.The complainant did not say yes or no to this activity, but said she moaned with theintention of conveying to Mr Heke-Gray that she was moaning with pleasure.Mr Heke-Gray then directed her into a cubicle in the public toilets and penetrated heranus with his penis. While he was doing this, his hands were around her throat.He ejaculated. The complainant said she was fearful and felt she had no choicethroughout this entire episode, which formed the basis of charges 1 to 4, being threecharges of sexual violation by unlawful sexual connection and one charge of assaultwith intent to injure.[12] Later that evening, Mr Heke-Gray, one of his associates, and the complainantchecked into a hotel in Whangārei. Mr Heke-Gray was under the influence of drugsand was paranoid. He placed clothing around the vents in the hotel room because hebelieved he was being gassed, and he used a table and chair and the complainant'ssuitcase to barricade the door. While the complainant was sleeping, Mr Heke-Graygrabbed her neck to wake her up. He grabbed her face and forced her to suck his penis.He then made her get onto her back, forced himself on top of her, and penetrated heranus, causing her excruciating pain. She pleaded with him to stop but he ignored her.The sexual assault was so rough that the complainant soiled the bed. The complainantsaid that Mr Heke-Gray had turned the music up loud so that no one could hear her.These events gave rise to charges 6 and 7, being sexual violation by unlawful sexualconnection.[13] Mr Heke-Gray threatened the complainant with a gun on multiple occasions.On one occasion, he waved the gun around while she was driving, making her fear forher life. On another occasion, he woke the complainant up by putting his thumbs intoher eyes. He then put a pistol into her mouth and forced it towards the back of herthroat, making her gag. Mr Heke-Gray threatened to kill her by saying "if you evercross me or if you ever dob me into the police I will blow the back of your head off".On a third occasion, while talking on the phone in front of the complainant, he said"I'm getting rid of this bitch". He put the gun to the back of her head with the safetyon and pulled the trigger. Mr Heke-Gray pulled the trigger multiple times and said,"I'm gonna blow the back of your head off, you whore". These events formed thebasis for charge 5 — unlawful possession of a firearm, and charges 9 and 10 —threatening to kill.[14] On another occasion, Mr Heke-Gray insisted that the complainant have hisnickname tattooed above her eyebrow. He told her that if she ever left him or didanything, he would cut the tattoo out with a machete (charge 8 — threatening to dogrievous bodily harm).[15] The final episode of violence took place on 25 October 2016. Mr Heke-Graywanted to have sex with the complainant, but she said no because she had thrush.3Mr Heke-Gray responded by saying he wanted to have anal sex with her. She againtold him no. Mr Heke-Gray then forced himself on top of her, removed her underwearand inserted his penis inside her vagina. While this was happening, the complainantwas crying, pleading with him to stop, and tried to push him off. Mr Heke-Grayignored her requests and overpowered her. He placed a pillow over her head to preventher from screaming. Again, the complainant said the music was turned up and wasloud. She explained "[t]hat was his little thing that he did, he always had the musicup really loud so that nobody could hear anything" (charge 11 — sexual violation byrape).[16] The complainant managed to escape from Mr Heke-Gray when she visited asexual health clinic later that day.3 The complainant was later diagnosed with chlamydia.Defence case[17] Mr Heke-Gray did not dispute that physical acts of the type described by thecomplainant took place at the beach on 13 October 2016, but he did contest the extentof the violence involved. He defended these charges on the basis the Crown had failedto prove that the complainant did not consent or that he did not hold an honest andreasonably held belief that she was consenting to both the physical and sexualbehaviour. The defence relied on the preceding Facebook messages as indicating thatthe complainant was a willing participant in the sexual activity that took place.Mr Heke-Gray's defence was also said to be supported by the complainant'sacknowledgment that she pretended she was enjoying the sexual activity and intendedto convey this to him, even though she said that was not the case.[18] Mr Heke-Gray denied the complainant's account that forced oral and anal sextook place in the hotel later that night. His evidence was that they went to bed earlyand had consensual anal sex in the morning. The defence pointed to the evidence ofthe hotel manager that the complainant did not appear to be distressed and did not raiseany issue about what had allegedly occurred when she came to reception on her ownand checked out the following morning.[19] Mr Heke-Gray denied having a gun and maintained that those allegations weresimply untrue. He also denied threatening to kill the complainant or cause her grievousbodily harm. As for the alleged rape on 25 October 2016, Mr Heke-Gray denied anysexual activity occurred that morning, stating that he was feeling unwell at the time,and he knew that the complainant had chlamydia.[20] The defence also relied on the evidence that the complainant visited a sexualhealth clinic on three occasions while she was in Whangārei. Although Mr Heke-Grayaccompanied her to the clinic on each occasion, she went into the consultation roomon her own. During one visit, on 19 October 2016, she told the specialist sexual assaultnurse that Mr Heke-Gray was "a bit of a dick but he was all right and she could handlehim". The nurse asked the complainant four standard questions designed to screen forfamily violence. When asked "[w]ithin the last year has anyone forced you to havesex in a way you didn't want to?", the complainant answered "no". The complainantalso answered "no" to a question asking whether there was a gun in the home.Summing up[21] The trial commenced on 1 October 2018 and the evidence concluded just priorto 11 am on 11 October 2018. The Crown and defence closing addresses were bothdelivered that day. The Judge summed up the following morning, which was a Friday.[22] Although one of the grounds of appeal is directed to one aspect of the summingup on the use of propensity evidence, the primary complaint concerns the Judge'sdirections on reasonable belief in consent.[23] The Judge gave general directions to assist the jury answer the questions setout in the question trail. On the question of consent (question 2 for all relevantcharges), the Judge said this:[17] Consent means a true consent given by a person who is able tounderstand the significance of what is to happen and who is able to make aninformed and rational decision as to whether to consent or not. Consent mustbe a freely given one. It is important to distinguish between a consent that isfreely given and submission to what she may regard as unwanted orunavoidable. Lack of protest or physical resistance does not of itself amountto consent. Allowing sexual activity because of the application of force to thecomplainant or the threat or fear of such application of force is not consent.Now that is as a matter of law and that has to do with what she is thinking.[18] Before I go on, you see in the extreme situation, a woman, even awoman who has been in a relationship with the man, can be lying there,allowing the man to have sex with her and in her mind she says, "I don'tconsent to this, I don't want it," but says nothing about it, just lies there.And, the jury accepted that as the fact of the case. She didn't [in her ownmind]. She wasn't consenting. Then she's not consenting. So this has reallynothing to do with Mr Heke-Gray, it's what [the complainant] thinks.[19] If a woman, as I say, gives up because she is exhausted or she knowsit's going to happen, it is unavoidable, unwanted, then that is not a trueconsent. So, you ask yourselves, "[h]ave the Crown proved beyondreasonable doubt to the point where you are sure that she did not consent?"and if you say, "[y]es, we're sure she did not," in the very strict terms that Ihave described and said to you, you move onto question 3. If you say, "no,we're not sure about that," then that is the end of it and you would find himnot guilty.[24] Turning to whether the Crown had excluded the possibility that Mr Heke-Grayhad a reasonable belief the complainant was consenting (questions 3 and 4), the Judgeexplained to the jury how they should approach these questions:[20] If you are satisfied, beyond reasonable doubt, to the point where youare sure that [the complainant] did not consent, then you must considerwhether the Crown have proven beyond reasonable doubt the defendant didnot have a reasonable belief that she was consenting. Now there are two waysthat the Crown can satisfy a jury of that and can satisfy you on that subject.The first way is contained in question 3, "[a]re you sure that Mr Heke-Graydid not believe [the complainant] was consenting?" If the Crown satisfy youthat the defendant did not in fact believe she was consenting, and that isconcerned with what the defendant himself thought at the time, that is, he didnot believe she was consenting, that would be enough. The second way, andthis is captured in [question] 4, that the Crown can prove this, and you onlygo onto [question] 4 if you say, "[n]o, we're not satisfied on [question] 3" isthat Mr Heke-Gray had no reasonable grounds to believe that[the complainant] was consenting.[21] What the defendant, Mr Heke-Gray, thinks is reasonable is not theissue. The grounds of the belief have to be reasonable. That requires anobjective assessment by you, looking at all circumstances, as representativesof our community, whether those grounds were reasonable. A person maythink that the other is consenting, but he might not have any reasonablegrounds for it. That is for you to decide objectively. Was it reasonable forMr Heke-Gray to think that? If indeed you find he did think that. That is whywhat Mr Heke-Gray thinks about the reason, or the grounds, cannot be takeninto account, as the sole decider of this issue.[22] That is pretty legalistic, so I will try and give you an example. If aman holds a knife to a woman's throat and says, "I'm going to have sex withyou," and does, and, "[w]hen I am having sex with you, you are to continuallysay, '[y]es, I want it, I like it, moan.'" The man then cannot come along andsay, "[w]ell, I thought she was consenting," because you, as representatives ofour community, will say, "[n]o, no, a man can't hold a knife to a woman'sthroat and think that she was consenting to having sex." Does that help you?I just got some blank looks there. So that is why you decide, as representativesof our community, whether, if you find Mr Heke-Gray did believe she wasconsenting, whether that was reasonable or not, and if you find, "[y]es, we aresure he had no reasonable grounds to believe that she was consenting," thenthat is the second way the Crown can prove this essential element. It onlyrequires one of those to be proved beyond reasonable doubt.[23] Now, the material time when you look at consent and belief in consentis at the time when the sexual connection, fingers in the vagina, penis in heranus, fingers in her anus, actually took place. The complainant's behaviourand attitude before and after the act itself may be relevant to that issue but itis not decisive. The real point is whether there was true consent or areasonably based belief in consent at the time the act took place.Jury question[25] As noted, the Judge gave his summing up on Friday morning. The jury retiredto consider their verdicts just before midday. At 3.45 pm, the foreperson presented a"jury trial communication" concerning the questions in the question trail for Charge 1.[26] The questions in the question trail on Charge 1 were:1 Are you sure that at the beach Mr Heke-Gray introduced his finger(s)into [the complainant's] genitalia?:2 Are you sure that [the complainant] did not consent to that act?3 Are you sure that Mr Heke-Gray did not believe [the complainant]was consenting?4 Are you sure that Mr Heke-Gray had no reasonable grounds to believethat [the complainant] was consenting?[27] The jury communication read as follows:Charge 1Q 1: all agree yesQ 2: all agree yesQ 3: all agree noStuck on question 4How is any reasonable person to know that she did not consent if shepretendedSo generally speaking how is a man ever to know whether she is consentingor not if she pretends[28] After discussing the matter with counsel, the Judge answered the jurycommunication at 4.25 pm by largely repeating the directions he had already given inhis summing up:I proceed on the basis that you are considering questions 3 and 4 in relation tothis jury trial communication so that you are satisfied beyond reasonable doubtthat [the complainant] did not herself consent to the activity, and if you reachthat point which you obviously have, there are two ways that the Crown cansatisfy you on the subject that the defendant did not have a reasonable groundto believe that she was consenting and the Crown have to prove that beyondreasonable doubt.So question 3 covers the first of the two ways that the Crown can satisfy youof this. One would be for the Crown to satisfy you that the defendant did notin fact believe she was consenting, that is concerned with what the defendant,Mr Heke-Gray, himself thought at the time. If you are satisfied, if you aresure that he did not believe she was consenting that would be enough and youwould find him guilty. If you say, no, we're not satisfied that the defendanthimself thought she was consenting [you] would say well move onto question4 which is the second way that the Crown can satisfy you on this limb, that is,that the defendant could not reasonably have thought that [the complainant]was consenting. What the defendant thinks is not the issue.If you are satisfied that the defendant had no reasonable grounds to believethat she was consenting that would be enough too. That requires an objectiveassessment by you of all the evidence, what occurred before, what occurred atthe time and what occurred after. Bearing in mind you make this decision ata point in time when the physical act is taking place, that's the crucial bit.Of course, you look at what happened before, at that crucial point and whathappened after and you decide that as representatives of the communityconsidering all of the evidence. Have the Crown satisfied you the defendantcould not reasonably have thought that she was consenting, and again that isnot what the defendant thinks is reasonable it's what you think is reasonable.It's what we call an objective test. A general test – subjective test is in yourown mind, objective test is other people in the community.Now having discussed it and taken submissions from counsel, I can't answerthe two questions that you ask because those are questions of fact for you, atleast at this stage.So I have given you the general law, the two limbs which are covered byquestions three and four, directed you how or what you should look at andhow you should come up with your decision.[29] The Judge then addressed the options available to the jury if they needed moretime to consider their verdicts, given it was already late on a Friday afternoon.Now, and you mightn't know this, when we reach about 5 o'clock you havethe option at that point, and I don't put any pressure whatsoever. What youdecide to do both I and counsel will just agree with, all right, so don't thinkwe're trying to pressure you into anything but what I'm going to now tell youis the options that you have.At around 5 o'clock if you want you can stop for the day and come back onMonday. If you want to push on tonight we can do that, we can stay here tilla reasonable hour and if it goes past about 6 o'clock dinner will be providedbut we don't allow juries to sit till 9, 10, 11 o'clock at night or 1 o'clock in themorning because experience has shown that at that time sometimes juries justgive in just to go home and have a sleep so we don't allow that but it's over toyou. If you want to go through till 5 o'clock and then go home or thereaboutsthat fine. If you want to push on to 7 or 8 or 9, that's fine, just let me knowand I will arrange for dinner to come in or at any time if you go past 5 and youdecide, no, we've had enough, we're all getting a bit jaded here and it's all abit repetitive what we're talking about and we'd rather go home well you justlet me know and that's what you can do. We don't keep you together until sortof 7.00 am tomorrow morning and we're all sort of bleary eyed, [that is] notthe way we do it. You've got to be fresh, you've got to be focused. I'm talkinggenerally about juries.So those are your options and you just let me know in one of these jury trialcommunications what you would like to do and we'll do it and I know we'vegot a juror in the back there that doesn't really want to be here Monday and Isuppose there are a number of others that don't but we cannot sit tomorrowbeing a Saturday with the industrial action and everything the Courts aretaking, there's just no one here. We have people tonight, other people willcome in and provide security for everybody so there's no difficulty with thatbut you can't sit tomorrow. He's not going now, he's going to go shortly.So you let me know, Mr Foreman, what your jury wants to do.[30] The jury retired again just after 4.30 pm. They returned to give their guiltyverdicts on all charges at 5 pm.Appeal against convictionFirst ground — reasonable belief in consent — Dr Birath's report[31] Sexual violation is defined in s 128(1) of the Crimes Act 1961 as rape orunlawful sexual connection. Rape is defined in s 128(2):(2) Person A rapes person B if person A has sexual connection withperson B, effected by the penetration of person B's genitalia by personA's penis,—(a) without person B's consent to the connection; and(b) without believing on reasonable grounds that person Bconsents to the connection.[32] Unlawful sexual connection is defined in s 128(3):(3) Person A has unlawful sexual connection with person B if person Ahas sexual connection with person B—(a) without person B's consent to the connection; and(b) without believing on reasonable grounds that person Bconsents to the connection.[33] Consent must be assessed at the time of the sexual connection. A "belief thatthe complainant gave broad advance consent to sexual activity of an undefined scope"is plainly not sufficient.4 The absence of any protest or offer of physical resistancedoes not constitute consent.5 As the majority stated in the Supreme Court decision inChristian v R, there "must be something more in the words used, conduct orcircumstances (or a combination of these) for it to be legitimate to infer consent".6The Court elaborated that "[o]ne such factor could be a positive expression of consent"or "a relationship in which expectations have developed over time and the sexualactivity is in accordance with those expectations, that may be capable of evidencingconsent if there is nothing to indicate that the mutual expectations are no longeraccepted".7[34] As this Court observed in R v Can, the statutory language focuses on the actualstate of mind of the defendant and the reasonableness of the grounds for any belief thedefendant may have had as to whether the complainant consented.8 It follows that adefendant's personal characteristics could potentially be relevant to the enquiry.However, the issue did not squarely arise in that case because it had not been arguedat the trial that the defendant was any less likely than a hypothetical reasonable personto recognise that the complainant was not consenting.9[35] In Nixon v R, this Court confirmed the possibility that a defendant's personalcharacteristics could be relevant to the reasonableness of an asserted erroneous beliefin consent although it considered such cases were likely to be rare. The Court statedthere would need to be a credible narrative or expert opinion that the particularcharacteristic was relevant to the asserted belief in consent.10[36] This Court was invited to reconsider the issue in Taniwha v R, but it declinedto do so because the defendant had not pointed to any personal characteristics that4 R v Barton [2019] SCC 33, [2019] 2 SCR 579 at [93] and [99] per Moldaver, Côté, Brown andRowe JJ.5 Crimes Act 1961, s 128A(1).6 Christian v R [2017] NZSC 145, [2018] 1 NZLR 315 at [45] per William Young, Glazebrook,O'Regan and Ellen France JJ.7 At [46].8 R v Can [2007] NZCA 291 at [43]. See also R v R [2008] NZCA 222 at [31]; Taniwha v R [2010]NZCA 15 at [18]–[21]; and Nixon v R [2016] NZCA 589.9 R v Can, above n 8, at [51]. The Supreme Court declined leave to appeal: see Can v R [2007]NZSC 93.10 Nixon v R, above n 8, at [30].distinguished him from the ordinary person.11 Nevertheless, the Court accepted theremay be cases where the trial judge should isolate particular circumstances orcharacteristics of a defendant that may be relevant to whether there were reasonablegrounds for belief in consent.12[37] Dr Birath is a clinical neuropsychologist who specialises in assisting adultswith brain impairment, including those with neurological conditions such as FASD.He studied and practised in California and is currently Assistant Clinical Professor atthe David Geffen School of Medicine at the University of California, Los Angeles.He immigrated to New Zealand in 2021 and is a Consultant ClinicalNeuropsychologist at the FASD Centre Aotearoa in Auckland. Having assessedMr Heke-Gray early this year, Dr Birath confirms the informal diagnosis of FASDmade when Mr Heke-Gray was an adolescent.[38] Dr Birath says that a diagnosis of FASD typically requires impairment in atleast three of 10 brain domains. Dr Birath assesses Mr Heke-Gray as havingimpairment in seven of these, namely, intellect/cognition, academic achievement,language, attention/processing speed, memory, executive functioning, andadaptive/social functioning. Dr Birath explains that individuals with FASD tend tofunction with a concrete understanding of the world and have diminished ability toengage in abstract reasoning. They have impaired abilities in social understanding andjudgement.[39] Dr Birath suggests that this disorder may have contributed to Mr Heke-Gray'sinability to assess and understand the complainant's "level of consent" to the sexualactivity:13The facts of the case indicate that [Mr Heke-Gray] and [the complainant] cameto an agreement about sexual activities that were transactional in nature.Prior to their activities, [the complainant] had communicated (to hisunderstanding) both a willingness and a desire to engage in sexual activities.At some point after this agreement, the dynamic apparently changed such thatshe no longer wished to participate in them. While a cognitively-,intellectually-, and socially-normally functioning adult might pick up on thenuances of a changing dynamic of consent, Mr Heke-Gray is none of these.11 Taniwha v R, above n 8, at [21] and [23].12 At [22].13 Emphasis added.In the absence of explicit and straightforward communication about her desireto alter or stop their activities, it would be very difficult for someone with hislevel of impairment to read the social nuance of the situation to understandthat her internal mental state had changed such that she had a new anddifferent desire to not proceed as previously agreed. Furthermore, hisexecutive functioning impairments, characteri[s]ed by cognitive inflexibilityand concrete thinking, would have made him much more likely to get "stuck"on the original transactional nature of their agreement and have littleappreciation for any changing of their dynamic as time passed while they weretogether. If it was his initial clear impression that she was agreeing to theiractivities, his FASD-related deficits would make him very unlikely to waiverfrom this understanding without clear and direct contrary information.[40] Ms Johnston, for the Crown, submits that the evidence is not fresh. While sheacknowledges that the extent to which a defendant's personal characteristics can beconsidered in the assessment of reasonable belief in consent remains unclear inNew Zealand, she submits the evidence is not sufficiently cogent to justify admissionon appeal. She contends the evidence does not indicate that any different verdict mighthave been reached.[41] We accept that the evidence is not fresh in that it could have been obtained withreasonable diligence prior to the trial. This is particularly so given Mr Heke-Gray hadbeen informally diagnosed with FASD years earlier. However, the evidence is plainlycredible, and its admissibility turns on whether it is cogent in that it could have affectedthe outcome.14 We therefore now consider whether there is a real prospect that amiscarriage of justice occurred because Dr Birath's evidence was not before the jury.15[42] We make the preliminary observation that some of Dr Birath's evidence wouldnot be admissible in any event. The passage quoted above does not accord with thecorrect legal position in that it appears to proceed on the assumption that a prioragreement to engage in sexual activity may be sufficient to constitute reasonable beliefin consent to the particular sexual activity founding the charge unless the complainantmade withdrawal of consent clear to him by "explicit and straightforwardcommunication".14 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and R v Bain [2004] 1 NZLR 638 (CA)at [22] and [25].15 Ieremia v R [2020] NZSC 143, [2021] 1 NZLR 168 at [42].[43] In any event, we do not consider Dr Birath's evidence could have provided anymaterial assistance to Mr Heke-Gray on whether he had a reasonable belief in consenton the later charges relating to the sexual activity at the hotel (charges 6 and 7), andthe charge of rape (charge 11). Mr Heke-Gray defended these later charges on thebasis that the sexual activity did not occur. There was no narrative to support asubmission to the jury that Mr Heke-Gray had an honest belief in consent and that thiscould be considered objectively reasonable taking into account his limited ability to"pick up on the nuances of a changing dynamic of consent". For these later offences,there was no evidence to raise the possibility of a nuanced changing dynamic thatMr Heke-Gray was not sufficiently attuned to because of his condition. Rather, thecomplainant's evidence, which the jury must have accepted, was that she made itperfectly clear to Mr Heke-Gray, by explicit straightforward communication of thekind Dr Birath suggests was necessary to get through to him, that she did not consent.[44] We will address these later charges first before considering whether theabsence of Dr Birath's evidence could have affected the outcome on the three chargesof unlawful sexual connection on the first day, at the beach.[45] In respect of charges 6 and 7 at the hotel on the night of 13 October 2016, thecomplainant's evidence was that she repeatedly told Mr Heke-Gray, "no, pleasedon't", "stop, stop, this is hurting me", "please stop, it really hurts", "I'm in pain", buthe carried on regardless in an extremely violent manner to the point where she soiledthe bed. She said it was "just horrible, so painful" and that she had "never felt painlike it". She also said Mr Heke-Gray turned the music up "real loud" so that no onecould hear her.[46] The complainant was challenged in cross-examination on the basis that nosexual activity took place that night. She firmly rejected that. Mr Heke-Gray'sevidence was that he was tired and went to sleep early, just on dark or a little after.He denied having sex with the complainant that night. This was the case advanced byhis counsel in his closing address — "his case is there was no sex that night".[47] The jury was clearly satisfied beyond reasonable doubt that the sexual activitydescribed by the complainant took place and that she did not consent to it.Having accepted the complainant's evidence about this, there was no basis for the juryto entertain a doubt that Mr Heke-Gray may have thought the complainant wasconsenting to this extremely violent sexual activity and he had reasonable grounds forthat belief. The jury could not have been assisted by the knowledge that Mr Heke-Grayhas difficulty picking up social cues and nuances. Dr Birath does not suggest thatMr Heke-Gray's condition could have impeded his ability to understand thecomplainant's repeated pleas for him to stop.[48] The same analysis applies to the charge of rape on 25 October 2016.The complainant's evidence was that she woke up to find Mr Heke-Gray watchingpornography. When he asked for sex, she told him that she did not want to becauseshe had thrush and was sore. She said he took no notice and proceeded to forciblyremove her underwear even though she was resisting. He then forced himself on herand raped her despite her repeated pleas for him to stop, saying that he was hurtingher. When she started crying and screaming, he put a pillow over her head to mufflethe sound.[49] Mr Heke-Gray gave a fundamentally different account in his evidence, denyinghe had sex with the complainant that morning. He was adamant that they had not hadsex for days. He said he was dehydrated that morning and his head felt like it hadbeen "kicked in". He said he was "spewing up" and "none of that little scenariohappened".[50] Again, the jury must have rejected Mr Heke-Gray's evidence about thisincident and accepted the complainant's evidence. The jury's assessment would nothave been assisted by Dr Birath's evidence that Mr Heke-Gray is rigid in his thinkingand has difficulty reading "the social nuance of the situation".[51] In our view, there is no prospect that Dr Birath's evidence could have assistedthe jury in respect of any of the sexual violation charges other than potentially thosearising out of the admitted sexual activity that took place at the beach, shortly after thecomplainant and Mr Heke-Gray first met. We now turn to consider those charges.[52] In her evidential interview, the complainant described what happened in thecar after she and Mr Heke-Gray arrived at the beach (charges 1, 2 and 3): we parked up and this is the first time he sexually assaulted me and hebasically was putting his hands all over my face, he was squeezing my facelike this, he was slapping me, um, he pulled my shirt up and he bit me onmy stomach a few times, I've still got the bruises, um, he put his fingers insideme, um, inside my vagina, um, he squeezed my breasts quite hard, um, andwas kissing me and, um, and then he put his fingers up my anus and was beingquite rough, um, I, I didn't say no, I didn't, I didn't say I didn't want this tohappen but I was, I had felt I had no choice, I was, I was extremelyuncomfortable, extremely worried and quite fearful because I thought ifthis is what it's gonna be like the first time, what's it gonna be like for the restof the time.[53] Later in the interview, the complainant was asked what Mr Heke-Gray said atthe start of this episode. She replied: he just said, "fucken pull your pants down you fucken whore", and that'sit, that's all I remember [54] She elaborated on what happened: he was just grabbing me, um, pulling my pants down, pulling my top up,just biting me on my, on my torso, kissing me really roughly, um, grabbingmy face and doing that to it and slapping me like quite hard too, um, puttinghis fingers like in my mouth and down my throat like making me gag, it wasjust horrible He started with just two [fingers] and then he moved to four and then he triedto fist me. So he tried to put his whole hand up there basically, he was doingthat like real hard. So it was quite painful, um, it was horrible, um, and thenhe did it to my anus. So he put his fingers up there and put four fingers upthere and he was doing that thing again, um, and it just, it was a mess, made amess. It was horrible.There was just faeces everywhere. It was horrible.[55] When asked whether she said anything at the time, the complainant responded:I wasn't saying anything. I didn't say a thing.[56] When asked why not, the complainant responded: I, it felt like I had no choice, felt like I, I was just moaning like I was justlike writhing in pain and was just making pain sounds but I was trying to makeit sound like I was enjoying myself but really I was just moaning in pain really,it was a really unpleasant experience and never, ever in my life have I everhad that.[57] Turning to charge 4, which occurred in the toilets at the beach, the complainantsaid: [S]o after that, um, we went into the toilet where he, um, penetrated meanally and hurt me quite bad, um, had his, while he was doing that he had hishands around my throat like from behind like pulling me back and, um, andthen, yeah, he, he just, he just invaded my privacy completely, um, just, it washorrible, it was really just, it was just disgusting what he was doing [He was] calling me names. Just saying I'm a dirty whore and a slut and a hoeand, yeah, and filthy whore.[58] The complainant was asked in her evidential video interview whether sheprotested during this incident:[Q.] did [you say or do] anything during that time, that would've made himthink that it, you didn't want it or?[A.] No, 'cos I didn't, I, to be honest I didn't say no, I didn't scream, I didn'tcry, I just took it, I just crunched my teeth and took it, mm.[59] In cross-examination, the complainant rejected the proposition that she was anactive and willing participant in what occurred at the beach. She also rejected thesuggestion that Mr Heke-Gray used only one or two fingers, saying that was "a lie".She agreed that she did not say "no".Q. So everything that happened in the car, no matter what was going on inyour head, you didn't say anything to give him the message no, did you?A. No, I couldn't feel like – I didn't feel like –Q. In the car. So what did you mean, "Like I was trying to make it soundlike I was enjoying myself?"A. Yeah[,] 'cos I didn't, I didn't want to upset him or I didn't, I didn't wanthim to think I wasn't able to handle it like but I was really – the sounds Iwas making weren't enjoyment sounds.A. I never said yes. I never said yes. I never said no either, but I never saidyes.Q. Were you, you were moaning weren't you?A. Moaning can have two different meanings.Q. Okay.A. Moaning in pain, moaning in pleasure.Q. Were you moaning with pleasure?A. No.Q. Were you intending to convey to him though that the moaning was withpleasure?A. Yes.[60] It is evident from the jury communication that this part of the evidence causedthe jury some difficulty on the issue of reasonable belief in consent. However, the juryclearly did not consider this evidence in isolation. They were entitled to consider thispart of the evidence in the context of all the evidence in respect of this incident.The jury found it had been proved beyond reasonable doubt that Mr Heke-Grayassaulted the complainant with intent to injure her in the car. The extreme physicaland sexual violence he inflicted at that time went well beyond anything discussed inthe messages exchanged the previous day. Her earlier indicated willingness toparticipate in anal sex was on the express basis that he would use lubricant and nothurt her. Mr Heke-Gray assured her that he would never hurt her. He clearly knewthe complainant was not consenting to being hurt. The absence of protest or complaintby the complainant at the beach does not assist Mr Heke-Gray on the issue ofreasonable belief in consent.[61] What happened in the car and later in the toilet went so far beyond what hadbeen discussed that there was no room for the prospect that any subjective belief inconsent held by Mr Heke-Gray could be rendered objectively reasonable in the lightof the rigidity in his thinking and inability "to read the social nuance of the situation".The fundamental problem with Dr Birath's thesis is that there was no evidence that thecomplainant's "internal mental state had changed such that she had a new and differentdesire to not proceed as previously agreed" and that Mr Heke-Gray could notreasonably be expected to be able to pick up on this because of his condition. We donot consider this case is analogous to the circumstances discussed by theSupreme Court in Christian v R (referred to at [33] above) as potentially supporting areasonable belief in consent.[62] For these reasons, we conclude that Dr Birath's evidence is not cogent in thatit could not have affected the outcome. In our view, there is no risk that justicemiscarried because his evidence was not before the jury. This ground of appeal fails.Second ground — adequacy of directions on reasonable belief in consent[63] Mr Chisnall submits that tailored directions on the elements of consent andreasonable belief in consent were required in this case given the unusual relationshipbetween the complainant and Mr Heke-Gray. He submits that the Judge's directionswere incomplete in three critical respects:(a) The jury was not told that the objective reasonableness of belief inconsent had to be considered from the perspective of a person inMr Heke-Gray's shoes. This alleged error was repeated in answer tothe jury question.(b) No direction on reluctant or regretted consent was given.(c) The example chosen by the Judge to illustrate what does not constitutereasonable belief in consent as a matter of law was inappropriate giventhe close similarity to the Crown's case.Directions on objective reasonableness of belief in consent[64] For ease of reference, we repeat the passage of the Judge's summing up whichMr Chisnall submits was correct but incomplete:[21] What the defendant, Mr Heke-Gray, thinks is reasonable is not theissue. The grounds of the belief have to be reasonable. That requires anobjective assessment by you, looking at all circumstances, as representativesof our community, whether those grounds were reasonable. A person maythink that the other is consenting, but he might not have any reasonablegrounds for it. That is for you to decide objectively. Was it reasonable forMr Heke-Gray to think that? If indeed you find he did think that. That is whywhat Mr Heke-Gray thinks about the reason, or the grounds, cannot be takeninto account, as the sole decider of this issue.[65] We also repeat the relevant part of the Judge's response to the jury question:If you are satisfied that the defendant had no reasonable grounds to believethat she was consenting that would be enough too. That requires an objectiveassessment by you of all the evidence, what occurred before, what occurred atthe time and what occurred after. Bearing in mind you make this decision ata point in time when the physical act is taking place, that's the crucial bit.Of course, you look at what happened before, at that crucial point and whathappened after and you decide that as representatives of the communityconsidering all of the evidence. Have the Crown satisfied you the defendantcould not reasonably have thought that she was consenting, and again that isnot what the defendant thinks is reasonable it's what you think is reasonable.It's what we call an objective test. A general test – subjective test is in yourown mind, objective test is other people in the community.[66] Mr Chisnall's complaint is that these directions omitted an important aspect ofthe enquiry which is directed to a hypothetical reasonable person "in the shoes of thedefendant", being the formulation suggested by this Court in R v Gutuama:16[39] The other way of satisfying the third element would be to satisfyyou that no reasonable person in the [defendant's] shoes could have thoughtthat [the complainant] was consenting. That is concerned with the belief of areasonable person placed in the [defendant's] position. If no reasonableperson would have thought that she was consenting, that too would be enoughfrom the Crown's point of view.[67] We do not consider there was any misdirection by the omission of any specificreference to a reasonable person "in Mr Heke-Gray's shoes". The purpose of thesuggested direction in Gutuama, referring to a reasonable person in the defendant'sshoes, was not to import any subjective element to this part of the enquiry, which is anobjective test. Rather, the idea was to invite the jury to consider the matter from theperspective of a reasonable person placed in the defendant's position taking accountof all relevant circumstances. That is effectively what the Judge directed the jury todo in his summing up using different words — "looking at all circumstances, asrepresentatives of our community, whether those grounds were reasonable Was itreasonable for Mr Heke-Gray to think that?"1716 R v Gutuama CA275/01, 13 December 2001 at [39].17 Emphasis added.[68] It is also what the Judge directed the jury in response to their question:That requires an objective assessment by you of all the evidence, whatoccurred before, what occurred at the time and what occurred after. Bearing inmind you make this decision at a point in time when the physical act is takingplace, that's the crucial bit. Of course, you look at what happened before, atthat crucial point and what happened after and you decide that asrepresentatives of the community considering all of the evidence. Have theCrown satisfied you the defendant could not reasonably have thought that shewas consenting, and again that is not what the defendant thinks is reasonableit's what you think is reasonable.[69] It can be seen that the Judge directed the jury to consider all the relevantcircumstances and what Mr Heke-Gray could reasonably have thought. We note thatthe Judge's directions align with the current specimen directions in the bench book,which similarly contain no reference to assessing the existence of a reasonable beliefin consent from the perspective of a person in the defendant's shoes:If you are satisfied beyond reasonable doubt that the complainant did notconsent, then you must consider whether the Crown has proven beyondreasonable doubt that the defendant did not have a reasonable belief that shewas consenting. There are two ways that the Crown could satisfy you on thatsubject.1. For the Crown to satisfy you that the defendant did not believe that shewas consenting. That is concerned with what the defendant himselfthought at the time. If he did not believe that she was consenting, thatwould be enough.2. For the Crown to satisfy you that the defendant could not reasonably havethought the complainant was consenting. What the defendant thinks isreasonable is not the issue. If you are satisfied that the defendant had noreasonable grounds to believe the complainant was consenting, that toowould be enough.The Crown must satisfy you as to at least one of those requirements, beyondreasonable doubt.Direction on reluctant or regretted consent[70] Mr Chisnall submits that the Judge erred by not giving a direction that consentincludes a consent given reluctantly or hesitantly and one that might be regrettedafterwards.18 He submits that the way the complainant answered questions in evidencecreated the need for such a direction.19 He argues the outcome could well have been18 Citing R v Herbert CA81/98, 12 August 1998.19 Citing Dibben v R [2018] NZCA 134; and Charlton v R [2016] NZCA 212.different if such a direction had been given. He says the jury's question highlights themateriality of this error.[71] The Judge gave clear directions on what is meant by consent in this context.For the reasons summarised below, we do not consider there was any requirement forthe Judge to go further in the circumstances of this case and discuss the possibility thecomplainant consented reluctantly, hesitantly, or later regretted giving consent.[72] We have already reviewed the complainant's evidence. She was clear that shedid not consent. It was not put to her in cross-examination that she gave consentreluctantly or hesitantly or that it was only later that she regretted giving consent.To the contrary, it was put to her that she was "an active and willing participant" in thesexual activity at the beach.[73] Mr Heke-Gray defended the later charges on the basis that the sexual activitydid not take place. As for the beach charges, his evidence was that the complainantnot only consented, but she was a willing participant who enjoyed the experience.[74] There was therefore no evidential basis for any suggestion of a reluctant,hesitant, or regretted consent in respect of any of the charges. The jury might havebeen puzzled if the Judge had attempted to give a tailored direction on this topic whenit had not formed any part of either the Crown or the defence case.Direction on what does not constitute reasonable belief in consent[75] We have already quoted the Judge's directions in his summing up at [24] above.For ease of reference, we set out again the particular passage Mr Chisnall criticises:That is pretty legalistic, so I will try and give you an example. If a man holdsa knife to a woman's throat and says, "I'm going to have sex with you," anddoes, and, "[w]hen I am having sex with you, you are to continually say,'[y]es, I want it, I like it, moan.'" The man then cannot come along and say,"[w]ell, I thought she was consenting," because you, as representatives of ourcommunity, will say, "[n]o, no, a man can't hold a knife to a woman's throatand think that she was consenting to having sex." Does that help you? I justgot some blank looks there.[76] Mr Chisnall submits that the Judge's example contained inflammatoryelements drawing on themes running through the Crown's evidence on other chargesand was unfairly prejudicial to Mr Heke-Gray's defence. The complainant did not saythat Mr Heke-Gray held a knife to her throat or that he demanded that she feignpleasure. While it was part of the Crown's case that Mr Heke-Gray threatened thecomplainant with the firearm, this was not to secure submission to sexual activity.Mr Chisnall says the hypothetical example chosen by the Judge was fraught becauseit included features common to the actual offending alleged.[77] We agree it would have been preferable if the Judge had chosen a hypotheticalexample that did not include features similar to the alleged offending. The Judge'sreference to "moan" was not a hypothetical example, it correlated directly to thecomplainant's evidence relating to the beach incidents. The reference to holding theknife to the throat bore some resemblance to the evidence that Mr Heke-Gray put hisfingers down her throat, and, on another occasion, put a pistol in her mouth and forcedit to the back of her throat. The problem with the example chosen was that itunnecessarily created the potential risk of conveying to the jury the message that themoaning might have been in response to a threat of the kind Mr Heke-Gray allegedlymade to the complainant and as such this evidence did not assist him on the issue ofreasonable belief in consent.[78] However, there was no evidence that Mr Heke-Gray threatened thecomplainant at the beach or that she moaned in response to any such threat or demand.There was also no evidence that he held a knife to her throat at any stage or that heeven possessed one. None of this formed any part of the Crown's case, and the jurywould have been clear about that. The Judge's directions, including those based onthe example given, were legally correct. We see no real risk that the jury reached theirverdicts otherwise than on the basis of the evidence and in accordance with the law.For these reasons, although we agree that the Judge could have chosen a betterexample, we do not consider this created a real risk that justice miscarried.Third ground — adequacy of directions on propensity evidence[79] The Crown made a pretrial application to adduce as propensity evidenceMr Heke-Gray's convictions for rape and two charges of unlawful sexual connectionarising out of events that took place on 3 July 2008. Mr Heke-Gray pleaded guilty tothis offending (as well as injuring with intent to injure, two charges of male assaultsfemale and threatening behaviour) and was sentenced on 3 April 2009 to eight years'imprisonment.[80] The facts of the 2008 offending were as follows. Mr Heke-Gray and thecomplainant had been in a relationship for six months. After the complainant endedthe relationship and moved home to live with her parents, Mr Heke-Gray asked her tocome to his room at the backpackers accommodation where he was staying to helphim with his computer. Soon after she arrived, an argument broke out. She tried toleave but he blocked her from doing so. He started pushing her around and then kickedher in the face, stunning her. He continued to hit her about the head and face.When she started crying, he turned on the shower and put some music on to dull thenoise. He forcibly removed her clothing, forced her legs apart and shoved the end ofa bottle into her vagina. He grabbed her by the throat and forced three fingers into heranus. Despite her screaming and begging for him to stop, he did not. He continued tostrike her on head, back and legs and threatened to break her fingers. He then appearedto calm down but demanded she perform oral sex on him. She did so and submittedto sexual intercourse with him because she feared for her life.[81] Judge McDonald ruled that the evidence of the prior convictions for rape andunlawful sexual connection was admissible propensity evidence.20 At the time theapplication was made, Mr Heke-Gray was not facing any charges arising out of theevents at the beach. Those charges were not added until 8 May 2018. Accordingly, thepre-trial ruling did not consider the admissibility of the propensity evidence inconnection with the beach charges, only the later charges.20 R v Heke-Gray [2017] NZDC 26064.[82] Mr Heke-Gray appealed against the pretrial admissibility decision, but theappeal was dismissed.21 This Court described the relevant propensity as being"a propensity to act towards women in an aggressive, possessive and controlling way,and [to be] sexually and physically violent towards them".22 This Court consideredthe 2008 offending was similar to the alleged offending in 2016 (at the hotel andsubsequently):23[40] Therefore, while there are some differences in the background to the2008 offending and the 2016 allegations, ultimately, the core elements of bothare significantly similar. The complainants were both situationally vulnerablewomen. The [complainant in] the 2008 offending was not permitted to leaveand was repeatedly hit about the head and choked, while the complainant inthe 2016 allegations was overpowered by Mr Heke-Gray's threats and actions.That continued until she was able to escape. She knew no one in Whangārei.Mr Heke-Gray remained with her throughout.[41] Mr Heke-Gray used the noise of showers and/or loud music to maskhis offending. He was possessive, in the extreme, towards both women.He took each of their cell phones and accused them of being unfaithful.He accompanied them both to medical appointments in respect of theirinjuries but tried to stay with them so they could not complain or tell medicalstaff what had occurred. He sexually assaulted them both, including by digitalanal penetration, despite their protests.[83] Judge McDonald gave the jury the following directions on the relevance of thepropensity evidence and how it could be used:[68] The Crown says it is therefore likely that he has done what he ischarged with, on this occasion, in this trial. The Crown highlight similaritiesbetween these two complaints, the one in 2008 and the one before you, sayingthe similarities between the two disclose a pattern of behaviour which makesit more likely the defendant has committed the offences he now faces. That isa legitimate argument only if you first accept that similarities or [a] patternbetween the earlier admitted offending and the current alleged offendingactually exist.[69] Here, the issue in relation to the beach and the [hotel] is whether thecomplainant consented and whether the defendant had reasonable grounds tobelieve she was. In relation to the last incident, the rape on 25 October 2016,the issue is whether there was sexual intercourse that morning. The Crownhighlights that on both occasions, in July 2008 for which he pleaded guiltyto the charges, and the alleged offending here in 2016, there are similaritiesand points to the following. The offending, in relation to both, was againstvulnerable women. In July 2008, the complainant was, in effect, trapped inhis room at the backpacker's. Here, [the complainant] came up to Whangāreiwhere she knew no one, was in his car driving at his direction, where to go,21 Heke-Gray v R [2018] NZCA 153.22 At [31].23 Footnote omitted.where to stay, and was almost always with him and controlling of her.Secondly, there was anal sex on both occasions. That is in 2008 and here.The Crown say that is unusual, that type of sexual activity. Three, he usednoise, music, the shower, to mask the sounds of what he was doing to each ofthe women. Four, he was intimidating on both occasions. Both the woman in2008 and [the complainant], are slender, small built women, where he is apowerful, well-built man. On both occasions, in 2008 and in 2016, he waspossessive and displayed paranoid behaviour, jealous behaviour, in relation toboth of them. Both complainants, with his assistance, used medicalprofessionals to get away. In 2008, he took the [complainant] to the Hospital. In 2016, on the last occasion, 25 October, he took her to [a] Clinic,attempted to remain close by, but on both occasions the medical staff separatedthem. The Crown say while there is a considerable time distance between thetwo events, 2008 and 2016, that can be explained by him being in prison.He was only released on 4 July 2016 and, to be kind, was being managed by[a probation officer] until 22 September 2016 when he went on the run andcame up here.The defence contest those similarities, arguing that there is no patternestablished between the two. The defence say the 2008 admitted offendingwas at the end of a six month relationship, whereas in 2016 he had just met[the complainant] and that relationship was just beginning. 2008, was oneoccasion overnight. 2016, a number of days. In 2008, there was one place,the backpacker's, whereas in relation to this trial, there were several differentlocations. In 2008, there was a rape and fingers in the anus, whereas here,there were fingers and a penis in the anus. 2008 was not a businessarrangement but the end of a relationship. In 2016, Mr Fairley says it was.In 2008, he raped her because he thought she was being unfaithful. Mr Fairleysays in 2016 not so. In 2008, she was down there living with her family andhad support, whereas [the complainant] came up to him and had none.You need to ask yourselves a simple question, "Are we satisfied that theseincidents disclose a pattern of behaviour on his part?" Of course, no twoevents or incidents would be exactly the same and they need not be for you totake it into account. If the answer to that question is yes and you accept theidea that these incidents disclose a pattern of behaviour, then that is evidenceyou can take into account in deciding whether there was consent and/or beliefin consent, on reasonable grounds, in relation to the first two, and whetherthere was sexual intercourse in relation to the last. If the answer is no and youreject the idea that these incidents disclose a pattern of behaviour, you shouldput the 2008 incident to one side and concentrate on the remaining evidence.Just because the defendant was involved in sexual misconduct on a previousoccasion does not mean he has not done so on this occasion. It is alsoimportant to remember that the evidence of the earlier rapes and sexualviolations is only one item of evidence. It may assist you, but you need toconsider all the evidence in order to decide the issues in this case. Please donot reach that conclusion simply out of a dislike for the defendant arising fromhis prior misconduct. Do not conclude that because he has previously beeninvolved in sexual misconduct, he therefore must be guilty of these charges.[84] Mr Elborough submits that the probative value of the 2008 offending to theissues in dispute in relation to the beach incidents was outweighed by the risk ofillegitimate prejudice. He says the key similarities — unusual possessiveness, threats,and the use of loud music to muffle sound — did not emerge until after the incidentsat the beach. Mr Elborough submits that the Judge was therefore required to"ringfence" the beach charges to mitigate the risk of illegitimate propensity reasoning.He also argues that the Judge's reference to "a pattern of behaviour", withoutidentifying the alleged propensity more specifically, effectively invited the jury toengage in illegitimate reasoning that Mr Heke-Gray had a general tendency to rape.[85] We consider the propensity evidence was admissible in respect of the beachcharges as well as the other sexual violation and rape charges. While Mr Heke-Grayaccepted that sexual activity took place at the beach, he disputed the complainant'saccount that it involved significant violence. For example, he disputed her evidencethat he forced four fingers into her anus and tried to "fist" her. His evidence-in-chiefwas that he "play[ed] with her vagina" and "then started playing with her bum".When cross-examined, he was only prepared to accept that he inserted a single fingerinto her anus. There were other unusual and distinct similarities, such asMr Heke-Gray's extremely possessive and controlling behaviour, which includedtaking control of the complainant's phone.[86] We agree with Ms Johnston that the propensity directions were adequate andmet the requirements set out in the Supreme Court's decision in Mahomed v R.24In particular, the Judge identified the propensity evidence, explained why it had beenled and how, if at all, it could be taken into account by the jury. The Judge summarisedthe competing contentions of the parties and gave standard directions to guard againstthe risk of unfair prejudice associated with the propensity evidence. We note that noissue was raised by the experienced trial counsel about these directions at the time.Fourth ground — trial counsel error[87] One of the Crown witnesses was the nurse at the sexual health clinic who spoketo the complainant on 19 October 2016 and asked her the questions we have alreadyreferred to (above at [20]) in order to screen for family violence. These includedwhether "[w]ithin the last year, [anyone had] forced [her] to have sex in a way [she]didn't want to". The nurse recorded the complainant's answer to this question as being24 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [95] per McGrath and William Young JJ."no". When Mr Fairley elicited this evidence from the nurse in cross-examination, theCrown solicitor objected on the basis that Mr Fairley had not questioned thecomplainant about this prior inconsistent statement. Mr Fairley acknowledged hisoversight and the Judge directed that the complainant be recalled so that thesequestions could be put to her. However, the complainant was not recalled because shewas unavailable.[88] In the circumstances, the Judge directed the jury in his summing up that whenthey assessed this evidence, they were entitled to take into account that thecomplainant was not asked about it.[89] That trial counsel made an error is not in dispute. There is no criticism of theJudge's direction. The sole question is whether the error created a real risk that theoutcome was affected, rendering the verdicts unsafe.25 For the reasons that follow, weare satisfied the error could not have affected the outcome.[90] Mr Fairley cross-examined the complainant extensively and squarely put to herMr Heke-Gray's case that all the sexual activity between them was consensual.Her firm rejection of that proposition was unwavering. It is highly improbable thather evidence on this fundamental issue would have altered if she had been asked aboutthe responses she gave to the nurse's questions.[91] The jury heard the nurse's evidence, which was unchallenged. The evidencewas also recorded in the notes of evidence that were available for the jury to review.In his closing address to the jury, the Crown solicitor made no point about Mr Fairley'sfailure to cross-examine the complainant on this issue. Mr Fairley acknowledged inhis closing address that the error was entirely due to his oversight, and he asked thejury not to hold this against Mr Heke-Gray. The Judge's direction on the topic wasappropriate and brief. Importantly, he did not tell the jury that the nurse's evidenceabout the answers the complainant gave her should be put to one side or given lessweight. There was no reason for the jury to doubt what the complainant told the nurse.The issue for the jury, as they clearly appreciated, was whether those answers reflectedthe true position. They were plainly satisfied the complainant's statement to the nurse25 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70] per Gault, Keith and Blanchard JJ.did not reflect the truth. In our view, there is no realistic possibility that the jury wouldhave reached a different view had the complainant been questioned about this. In otherwords, we do not consider there is any risk that the outcome was affected by this errorand that justice has miscarried as a result.Conclusion on conviction appeal[92] All grounds of appeal having failed, the appeal against conviction must bedismissed.Appeal against sentenceHealth assessors' reports considered by the Judge[93] Mr Jim van Rensburg, a clinical psychologist, considered that Mr Heke-Gray'sfailure to respond to treatment indicated that an indeterminate sentence would be thebest way of motivating him to make "a sincere effort towards desisting from sexualand violent offending":Given that Mr Heke-Gray has recently completed a lengthy prison sentencethat ostensibly had no deterrent effect the court may consider imposing aneven longer custodial sentence on this occasion. During his previous prisonsentence Mr Heke-Gray's conduct was such that he was found unsuitable totake part in group therapy. He left it till late in the sentence to display morepro-social conduct to then have the benefit of individual treatment for a shortwhile. It is therefore possible that an indeterminate prison sentence with arelatively short parole eligibility period may motivate him to displaypro-social behaviour from the outset and to seriously seek treatment for hisproblems. It will also ensure that he will be monitored for the rest of his life.[94] Dr Olivera Djokovic, a consultant psychiatrist, took a more neutral stance onwhether a sentence of preventive detention was required. She noted thatMr Heke-Gray had failed to engage in therapeutic programmes related to sex offendersand he had also failed to complete alcohol and drug related programmes. Although heengaged in 11 individualised sessions with a psychologist, she said these were ofvariable efficacy. Nevertheless, Dr Djokovic considered that various risk managementstrategies could be employed prior to Mr Heke-Gray's release, and she considered hisrisk of reoffending could be reduced if he engaged in recommended therapeuticinterventions. These would include individualised psychological intervention toaddress his poor emotional regulation and participation in a sexual offender treatmentprogramme. Dr Djokovic noted in her report that Mr Heke-Gray appeared to havegood support from his extended family and liaison with them prior to his release wouldbe a critical factor in successful community risk management.Sentencing judgment[95] Whata J commenced by considering the finite sentence that would otherwisebe imposed as an alternative to preventive detention. The Judge assessed the offendingas falling within the mid to upper end of band 3 of this Court's guideline judgment inR v AM (CA27/2009).26 The offending involved multiple occasions of serious violenceand violation of a complainant who was in a vulnerable and isolated position. It alsoinvolved terrifying threats of violence with a weapon and caused significant emotionaland physical harm to the complainant. The Judge considered an overall starting pointof 16 years would be appropriate for the sexual and violent offending in all thecircumstances.27[96] The Judge would have applied a discrete uplift of 12 months for the charge ofconspiring to pervert the course of justice. However, because Mr Heke-Gray pleadedguilty to that charge, the Judge discounted this by three months, resulting in an overallstarting point of 16 years and nine months' imprisonment.28[97] The Judge carefully reviewed Mr Heke-Gray's seriously disadvantagedbackground and upbringing, which the Judge described as traumatic.29 We need notrepeat any of the detail here. The Judge was satisfied there was a clear causal nexusbetween Mr Heke-Gray's systemic and social deprivation and traumatic upbringingand his offending. The Judge accepted that these factors, together withMr Heke-Gray's symptoms of ADHD and FASD and substance abuse, were thegenesis of his antisocial and violent tendencies and lack of insight.30 However, anyallowance for these personal mitigating factors had to be tempered by Mr Heke-Gray'songoing denial of his offending:26 R v AM (CA27/09) [2010] NZCA 114, [2010] 2 NZLR 750.27 Sentencing judgment, above n 2, at [39].28 At [41].29 At [13]–[17].30 At [45].[49] I must, however, moderate my approach to any personalcircumstances discount because it is not clear to me that you are at all readyto rehabilitate. Indeed, I remain concerned about your ongoing denial of theoffending and of the previous offending, in the sense of the harm that youcaused. That is a significant factor in any rehabilitation. So, while thedeep-rooted causes of your offending reduce your moral culpability, I cannotbe naïve about the fact that, on the information available to me, you continueto maintain the [complainant] consented to the abuse. This is also importantin cases of serious sexual violence because deterrence and denunciation mayneed to prevail. Your failure to acknowledge your wrongdoing brings this intoconsideration.[98] For these reasons, the Judge said that a 10 per cent discount was the most thatcould be allowed for personal mitigating factors. No allowance could be made torecognise Mr Heke-Gray's capacity for rehabilitation given his entrenched view thatthe complainant consented. Mr Heke-Gray expressed no remorse.31[99] Applying this discount, the indicative finite sentence was 15 years and onemonth's imprisonment.32 We note in passing that Mr Chisnall does not challenge anyaspect of the Judge's analysis or conclusion on the appropriate finite sentence thatwould otherwise be imposed.[100] The Judge also considered that a minimum period of imprisonment of50 per cent or seven years and six months was required to hold Mr Heke-Grayaccountable for the harm caused to the complainant, to denounce his conduct, to deterthis type of offending and to protect the community.33[101] The Judge then turned to consider whether preventive detention should beimposed instead of the indicated finite sentence. The Judge explained in the followingparagraphs of his judgment why he felt compelled to impose preventive detention:34[54] I am satisfied that all of the factors [in s 87(4) of the Sentencing Act]are engaged to varying degrees. It is clearly aggravating that you were onrelease conditions when you offended against the [complainant]. Dealing withthe issue of treatment, which has been raised by your counsel and which Iaccept there is some dispute about, while not clear-cut, I am satisfied that therewere problems with you gaining your access to [the Special TreatmentRehabilitation Programme]. That being the case, it cannot be said that youfailed to seek out that treatment. Balanced against this, your level of31 At [50].32 At [51].33 At [52].34 Footnote omitted.cooperation in terms of rehabilitative treatment was clearly poor.Furthermore, your ongoing denial suggests that you are not genuinely open torehabilitative treatment at this time. This favours a cautious approach andclose examination of whether a lengthy sentence is preferable.[55] Coming then to that assessment. With an end sentence of 15 yearsand one month, you will be in prison for a lengthy period, particularly if youcontinue to deny your offending. You are also eligible to be considered for anextended supervision order at the end of your sentence. These are mitigatingfactors, as the Court of Appeal noted in Parahi. Furthermore, given whatappears to me to be a clear link between your traumatic upbringing andsubstance abuse and your violent tendencies, there is clear scope forrehabilitation directed to those underlying causes, including via reconnectionto your whanāu and to your culture. But, regrettably, I have come to the viewthat given what appears to be an entrenched denial of your offending, Iconsider I am obliged to impose a sentence of preventive detention.Application to adduce further evidence[102] Mr Chisnall relies on Dr Birath's report to establish that Mr Heke-Gray hasFASD and ADHD. The neuropsychological testing he carried out indicates thatMr Heke-Gray has significant intellectual and cognitive impairment, consistent withFASD. Dr Birath assesses Mr Heke-Gray's full-scale intelligence quotient as being inthe 2nd percentile, which is in the extremely low range. Dr Birath considers this helpsexplain Mr Heke-Gray's impaired decision-making, marked impulsivity and reducedability to understand the consequences of his actions.[103] Dr Birath says that Mr Heke-Gray is likely to have limited success in anygroup-based educational rehabilitation setting because of his impairment, but he hasbenefited from the individual counselling sessions that were provided more recently.Dr Birath considers there are effective and therapeutic ways of managing a disabledperson like Mr Heke-Gray and if he is adequately medicated and abstains from abusingsubstances, "he is likely to benefit greatly from such treatment and have a measure ofsuccess in life".[104] Mr Chisnall also applies to adduce a report from Dr Shanmukh Lokesh, aconsultant forensic psychiatrist and senior lecturer at the University of Auckland, whosays that Mr Heke-Gray also fulfils the criteria for PTSD. Dr Lokesh considers that asentence of preventive detention would be counterproductive, and he recommends thata finite sentence be imposed. His primary reasons for reaching this view are capturedin the following passages of his report:The risk assessment profile indicated a moderate risk of further re-offending.Considering that he has had limited opportunities to engage in anyrehabilitation in the past, a sentence of preventive detention would make himless motivated to engage in any therapeutic activities or rehabilitation infuture.One positive factor for Mr Heke-Gray is that he is increasingly motivated tomake changes in his behaviour and maintain his resilience. He has takenresponsibility and is aware of addressing the earlier mistakes in his life.Despite the legal outcome, he is keen to engage in rehabilitationrecommendations and obtain a qualification in the custodial setting so that hecould change himself to be a better person and have realistic goals for success.Hence, in my opinion, a determinate sentence, rather than preventivedetention, would be the most effective way to motivate him to engage inrelevant rehabilitation interventions to reduce the risk of re-offending.With the above recommendations implemented, the downward spiral forMr Heke-Gray could be reversed. There is significant potential for him to berehabilitated to become a successful citizen in the community, which wouldmitigate the risk issues in the future.[105] Dr Lokesh concludes by making the following observations:Finally, it is important to realise the impact of cumulative insults over his lifefrom his birth, where he encountered physical abuse from his mother, who hadissues with alcohol dependence. Moreover, his father was largely absent inhis upbringing and allegedly had mental health issues and a criminalbackground. Subsequent abandonment by his parents and the emotional abuseby his extended family got worse over the next decade with substantialphysical, emotional, and sexual abuse whilst he was under the care of [ChildYouth and Family Services], leading to the development of PTSD symptoms.These extremely traumatic experiences were well documented and have had asignificant negative impact on this young man, who used alcohol and drugs asa means of escape. He was constantly marginalised and victimised for hisphysical and psychological handicap. This was made worse by the socialdisadvantages he encountered that exacerbated this disability at various levelsand contributed to his substance abuse. These deep-rooted psychologicalissues could be addressed through meaningful psychological sessions.[106] We are prepared to admit the further evidence from Dr Birath and Dr Lokesh.Whata J recorded in his minute dated 14 August 2019 that there was sufficientinformation about ADHD and FASD to justify a short adjournment to enableMr Heke-Gray to seek an expert report on these matters.35 However, this proved notpossible. The Judge noted in his sentencing judgment that Mr Heke-Gray was unable35 Sentencing judgment, above n 2, at [29].to instruct a further expert in relation to these matters in the time available.36We consider the evidence can be treated as being fresh in the circumstances.[107] The evidence is credible and cogent in that it could have affected the outcomeof what was a difficult and finely balanced sentencing decision. The further evidenceis relevant to the mandatory consideration in s 87(4)(d) of the Sentencing Act — theabsence of, or failure of, efforts by the offender to address the cause or causes of theiroffending. The further evidence helps explain why Mr Heke-Gray lacks insight andpersists with his denial of the offending. The evidence also sheds light on thedifficulties Mr Heke-Gray likely faced in engaging appropriately with the grouprehabilitative treatment that was offered to him during his earlier term of imprisonmentand whether other treatment options are likely to be effective.[108] Taking into account the importance of any decision to deprive a person of theirliberty indefinitely, we consider the overall interests of justice favour granting theapplication to adduce this further evidence.Submissions[109] Mr Chisnall does not contest that the criteria founding jurisdiction to impose asentence of preventive detention were met.37 The issue on appeal is whether this wasthe least restrictive outcome appropriate in all the circumstances.[110] Mr Chisnall notes that Dr Djokovic did not accept there was sufficientinformation to make a diagnosis that Mr Heke-Gray has FASD or ADHD.38 On theother hand, Mr van Rensburg accepted that Mr Heke-Gray may have ADHD and hecould not discount the possibility of FASD.39 However, they both said that a diagnosisof ADHD and/or FASD would not change their risk assessment.40 Mr Chisnall saysthat, in expressing those opinions, neither of these experts addressed the issue ofwhether, if Mr Heke-Gray did have FASD, ADHD and PTSD, this would haveimpeded his ability to meaningfully participate in group treatment options.36 At [30].37 Sentencing Act, s 87(2).38 Sentencing judgment, above n 2, at [28(b)].39 At [28(c)].40 At [28(d)].[111] Dr Birath is firmly of the view that Mr Heke-Gray will not be reformed byrepeated or prolonged incarceration. He says that harsh punishment will not act as aneffective deterrent in his case. Rather, he suggests there are more effective andtherapeutic ways of managing a disabled offender like Mr Heke-Gray, specifically:He should be under the care of a psychiatrist both in and out of custody.Treatment with stimulant medication is often successful in curbingimpulsivity that is neurological in origin. There is [a] strong suggestion fromhis history that his in custody behaviour suffers from the absence of treatmentwith medication. His medications must be administered to him in such a wayas to ensure regular compliance.Mr Heke-Gray will most benefit from having an environment that is adaptedaround his individual and specialised needs. This will involve providingexternal structure, support, and supervision. His life needs to be simplified,his stresses reduced, and he needs opportunities provided to build on strengths.He will need assistance navigating the responsibilities and tasks of adulthood,as he has never demonstrated an ability to do so. For example, he will needdirect personalised assistance (e.g., from a support worker) with tasks such asmaking appointments, enrolling for benefits, finding housing, and findingemployment. All of this may best be accomplished in a supportive housingsituation for patients with brain disabilities.[112] Dr Lokesh agrees with Dr Djokovic that Mr Heke-Gray's overall risk is capableof being reduced through effective rehabilitation. He too disagrees withMr van Rensburg that an indeterminate sentence would provide the best prospect ofmotivating Mr Heke-Gray to desist from sexual and violent offending. On thecontrary, Dr Lokesh considers such a sentence would be counterproductive and wouldlikely reduce his motivation to engage in any therapeutic activities or rehabilitation.[113] Ms Johnston submits that Mr Heke-Gray's pattern of offending and risk factorsdemonstrate that preventive detention was the appropriate sentencing outcome.She contends that the diagnoses of ADHD, FASD and PTSD do not alter this.Ms Johnston points out that within months of being released from a lengthy sentencefor the 2008 offending, Mr Heke-Gray breached his release conditions, removedhimself from his approved address and committed similar offending.[114] As to Dr Birath's contention that a sentence of preventive detention is unlikelyto have a deterrent effect on Mr Heke-Gray, Ms Johnston notes that this is not thepurpose of such a sentence, which is to protect the community. She submits that theevidence shows that Mr Heke-Gray is unlikely to abide by release conditions includingany treatment plans and he is therefore likely to pose a significant risk to the safety ofthe community following his release after serving a finite sentence. She contends thatthe possibility of an extended supervision order following release does not provide acompelling alternative given Mr Heke-Gray's deeply entrenched risk factors, hisdisregard for court-imposed conditions and his persistent denial of his offending.Ms Johnston submits that even if Mr Heke-Gray has ADHD, FASD and PTSD, thisdoes not lessen the need for the community to be protected from him.Assessment[115] As we have seen, the Judge considered he was obliged to impose preventivedetention because Mr Heke-Gray's ongoing denial of his offending suggested he wasnot genuinely open to rehabilitative treatment "at this time".41 The question is whetherthe further evidence now available, and which the Judge indicated he would havereceived if it could have been obtained prior to sentencing, leads to a differentconclusion. For the reasons summarised below, we have come to the conclusion thatpreventive detention is not the least restrictive outcome appropriate in all thecircumstances and that such a sentence is not required to secure adequate protectionfor the community. There appear to us to be better options available for mitigatingand managing the risk in Mr Heke-Gray's particular circumstances.[116] We agree with the Judge that Mr Heke-Gray's violent tendencies andcomparative lack of insight into his offending are connected to the trauma he sufferedin his upbringing combined with his neurological conditions. We also agree with himthat Mr Heke-Gray has the capacity for rehabilitation and that the support he has fromhis wider whānau will likely play an important part in this. Where we respectfullypart company with the Judge, is when he says that Mr Heke-Gray's ongoing denial ofhis offending indicates that he is not genuinely open to rehabilitative treatment.This was the pivotal factor in the Judge's decision to impose preventive detention.While in many cases, perhaps most, denial of offending will present a significantobstacle to successful engagement in rehabilitative treatment, this may not hold truefor someone like Mr Heke-Gray given his cognitive impairment and his otherneurological conditions. These conditions help explain why he lacks insight into his41 At [54].offending. Drs Birath and Lokesh also say that Mr Heke-Gray's FASD and ADHDexplain his disruptive behaviour and why he had difficulty engaging in group therapy.[117] However, notwithstanding his lack of insight and the difficulties experiencedto date, Drs Birath and Lokesh consider that Mr Heke-Gray is willing to engage inindividualised rehabilitation tailored to his needs and he would be very likely to benefitfrom this. Their opinions appear to be supported by the evidence that Mr Heke-Grayhas himself sought counselling and participated in the counselling provided throughACC. The reasonable prospect of successful rehabilitative treatment is also supportedby Dr Djokovic's opinion. She suggested that Mr Heke-Gray should continue withthe individualised psychological intervention being provided to address his pooremotional regulation. She says this will assist him to participate in other treatmentprogrammes.[118] The lengthy finite sentence of 15 years and one month's imprisonment thatwould otherwise be imposed ought to be sufficient to enable Mr Heke-Gray to be giventhe counselling and treatment he needs to reduce his risk of committing anotherqualifying sexual or violent offence upon release. If his risk remains sufficientlyelevated at that time, an extended supervision order could be made subject to suitableconditions to manage this risk. We do not consider this prospect should be disregardedmerely because Mr Heke-Gray did not comply with his prior release conditions.He was largely untreated at the time he was released following his earlier sentence.Further, the conditions that can be attached to an extended supervision order could besignificantly more restrictive if necessary. Given the potential scope and nature ofsuch conditions, it is not clear to us why these would not be adequate to protect thecommunity.[119] In conclusion, we consider the statutorily preferred option of a lengthy finitesentence should be imposed. We do not consider it is necessary to impose a sentenceof preventive detention, depriving Mr Heke-Gray of his liberty indefinitely.Result[120] The application to adduce further evidence is granted.[121] The appeal against conviction is dismissed.[122] The appeal against sentence is allowed.[123] The sentence of preventive detention is set aside. A finite sentence of 15 yearsand one month's imprisonment is substituted.[124] The minimum period of imprisonment of seven years and six months imposedby the High Court is confirmed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent