LUKE JAMES HENRY v R [2019] NZCA 266

LUKE JAMES HENRY v R [2019] NZCA 266 [2 July 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA632/2018[2019] NZCA 266BETWEEN LUKE JAMES HENRYAppellantAND THE QUEENRespondentHearing: 28 May 2019Court: French, Miller and Lang JJCounsel: J D Lucas and SMH McManus for AppellantM J Lillico for RespondentJudgment: 2 July 2019 at 11.00 amJUDGMENT OF THE COURTThe conviction and sentence appeals are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Luke Henry was convicted after trial of eight sexual and other violentoffences against a woman with whom he had been in a relationship. He appeals bothhis conviction and the sentence of preventive detention that Gendall J passed uponhim.11 R v Henry [2018] NZHC 1983 [Sentencing notes]; and R v Henry HC Christchurch CRI-2016-009-9047, 27 July 2018 [Summing up].[2] The grounds of appeal against conviction are that the Judge was wrong to givea lies direction for the complainant, that he failed to give a "reluctant consent"direction, and that the jury's guilty verdicts are unsafe because they are inconsistentwith not guilty verdicts returned on the balance of the 12 charges that Mr Henry faced.[3] With respect to sentence, Mr Henry says that the determinate sentence ofimprisonment the Judge would have imposed had he not opted for preventive detentionwould suffice to protect the community, in conjunction with an extended supervisionorder (ESO) if thought necessary at the time. That sentence was 12 and a half years,which he would serve in full because the rape and kidnapping convictions were secondstrike offences.2The narrative[4] The narrative begins on 30 November 2015, when Mr Henry went to thecomplainant's address. They had been in an on-again, off-again relationship.She denied him entry and called the police, who trespassed him from the property andarrested him when he did not comply. He was imprisoned until February 2016. Onhis release he briefly resumed a relationship with the complainant and was allowed tostay at her address for a few weeks. During this period he assaulted her three times.On each occasion he choked her or put his hands around her neck. Charges one (1) tofour (4) that he faced at trial concerned this period. Three were charges of maleassaults female, and the fourth was a charge of rape.[5] On 5 August 2016 Mr Henry was arrested when he entered the complainant'shouse via a bathroom window, having been refused entry, and she triggered a familyviolence alarm. He was remanded in custody and she was granted a protection order.He was sentenced to six weeks' imprisonment and released on 5 September 2016 oncondition that he was to have no contact with her.[6] Upon his release Mr Henry made contact with the complainant via phone callsand text messages, contrary to the terms of the protection order. He came to her house2 Sentencing Act 2002, s 86C.on 8 September and she let him in. He stayed the night and they had intercourse,consensually but on her account reluctantly.[7] On 9 September the two had consensual intercourse again and the complainantthen drove Mr Henry to his car, which was parked several streets away, so that hecould attend a probation appointment. He refused to get out of her car and after drivingaround for some time they returned to her house. There he took her phone, landlineand family violence alarm and told her "you are now my hostage". Just after midnighton 10 September a message was sent from his phone to an associate, stating that hewas holding someone against their will. Charge 5 was a charge of kidnapping.[8] In the interim, the complainant said that Mr Henry twice choked her. On thefirst occasion he placed his arm around her neck and applied pressure for about15 seconds before releasing her. This was the subject of charge 6, male assaultsfemale. Shortly afterward he again applied pressure around her neck from behind,tilting her head back. This was the subject of charge 7, male assaults female.[9] The complainant said that Mr Henry raped her twice on 9 September, sayingthat it was her punishment for putting him in jail. On her account she made it clearthat she did not want to have sex and on the second occasion she was crying.These incidents were the subject of charges 8 and 10. She said that before the secondrape she complained that her neck was sore and said that people would ask questionsabout the bruises he had left, and he responded by punching her twice in the back ofthe head. This was the subject of charge 9, male assaults female.[10] The complainant said that on the morning of 10 September she asked Mr Henryif he would let her go that day. He said that she was a nark or a snitch but he allowedher to take a shower and told her that he loved her. He then demanded sex, and whenshe refused he said that he wanted to see her cry again. After raping her he ejaculatedon her legs and wiped her down with tissues and soap, which she interpreted as anattempt to eliminate traces of what he had done. This was the subject of charge 11,rape.[11] At about 10:45 am, the police were called by a friend of the complainant, whoran toward the police when she saw them. Mr Henry was arrested. The 12th and finalcharge was breach of a protection order.The trial[12] The trial was held in May 2018. Apart from the complainant and a number ofpolice witnesses, the Crown called two doctors, an ESR expert, and a small number oflay witnesses whose evidence was peripheral in nature. There was a good deal ofevidence tending to support the Crown case, including the text message referred toabove and medical evidence of bruising on the complainant's neck. The defence casewas that sex was consensual and the rest of her claims were false. Bruising to her neckwas said to be the result of consensual choking during sex. Mr Henry did not giveevidence. As he did not submit to a police interview, his account was not beforethe jury.[13] As noted, charges 1 to 4 concerned the period between February and August2016. Mr Henry entered guilty pleas to charges one and three when arraigned for trial,and was found guilty on charge 2 and acquitted on charge 4. With respect to thecharges relating to the events of 9 and 10 September, he was found guilty of charges5, 7, 8, 10 and 12 and acquitted on the remainder. A list of the charges and verdicts isfound in the table below, which is taken from the Crown's submissions:Charge Particulars OutcomeCharge 1 — maleassaults femaleChoking the complainant aroundthe neck while pushing her againstbedroom wall between 1 March2016 and 1 August 2016Pleaded guilty at trialCharge 2 — maleassaults femaleChoking the complainant aroundher neck in the hallway between 4May 2016 and 1 August 2016Found guilty at trialCharge 3 — maleassaults femaleChoking the complainantbetween 1 March 2016 and 1August 2016, on same weekend ascharge 4Pleaded guilty at trialCharge 4 — rape Rape of complainant between 4May 2016 and 1 August 2016 onweekend when son was awayAcquitted at trialCharge 5 —kidnappingUnlawfully detaining thecomplainant without consentbetween 9 and 10 September 2016Found guilty at trialCharge 6 — maleassaults femaleFirst instance of putting armaround complainant's neck between9 and 10 September 2016Acquitted at trialCharge 7 — maleassaults femaleSecond instance of putting armaround complainant's neck between9 and 10 September 2016Found guilty at trialCharge 8 — rape First rape between 9 and 10September 2016Found guilty at trialCharge 9 — maleassaults femalePunching the complainant in theback of the head between 9 and 10September 2016Acquitted at trialCharge 10 — rape Second rape between 9 and 10September 2016 while complainantwas lying on her stomachFound guilty at trialCharge 11 — rape Third rape [between] 9 and 10September 2016 after thecomplainant had showeredAcquitted at trialCharge 12 —breach of aprotection orderPhysically abusing the protectedperson while a protection order wasin force against him between 9 and10 September 2016Found guilty at trial[14] We turn to the grounds of appeal.The consent directions[15] With respect to the rape charges the defence was that the incident had not beenproved or that sex occurred with the complainant's consent or Mr Henry's reasonablebelief in consent. Gendall J directed the jury as follows:3[44] Because consent here looms large in particular with respect to thoseoffences it is useful that I explain certain legal matters with respect to thatissue. Consent here means true consent, freely given by a person who is ina position to make a rational decision. A lack of protest or physical resistancedoes not of itself amount to consent. Also, if at the time [the complainant]was drunk or drugged that she could not consent or refuse to consent then herallowing this alleged sexual activity to occur was not consent. If she wasasleep or unconscious then, of course, she did not consent to the sexualactivity. If she was so drugged or drunk that she was in no position to know3 Summing up, above n 1.whether to consent or not then you would be justified in finding that she didnot consent. There is no real issue here, as I understand it, the position of herbeing in a drugged or drunk state when these events occurred.[45] If you are satisfied beyond reasonable doubt [the complainant] did notconsent to this sexual activity, you must then consider if the defendantMr Henry had a reasonable belief that she was consenting. The Crown mustprove beyond reasonable doubt that Mr Henry the defendant did not have thatreasonable belief that [she] was consenting. There are two ways thatthe Crown could satisfy you on that subject. One would be for the Crown tosatisfy you that the defendant did not in fact believe that she was consenting.That is concerned with what the defendant Mr Henry himself thought atthe time. If he did not believe that she was consenting that would be enough.The second way of satisfying you that he knew on that subject would be tosatisfy you that the defendant Mr Henry could not reasonably have thoughtthe complainant was consenting. What the defendant thinks is reasonable isnot the issue. If you are satisfied that Mr Henry had no reasonable grounds tobelieve [she] was consenting that, too, would be enough. The Crown mustsatisfy you as to at least one of those requirements, again, beyond reasonabledoubt.[46] In this case the Crown says that no reasonable person in Mr Henry'sshoes could have thought [the complainant] was consenting and neither didthe defendant Mr Henry here. The Crown contends that [the complainant] hadbeen detained against her will and subjected to violence to make her comply,that she was frightened, she says in her evidence, and felt it was smartest tosimply co-operate, according to the Crown. The Crown says this is notconsent and nor could a reasonable person consider that it was.[16] This direction is not said to be incorrect, though Mr Lucas did note correctlythat it spoke unnecessarily of intoxication, which was not in issue. Counsel arguedrather that the Judge erred by omitting a further direction on reluctant orsubsequently-regretted consent. A direction was required because there was a factualnarrative open on the evidence to the effect that she may have agreed reluctantly tosex or later regretted it. He cited this Court's decisions in Dibben v R andCharlton v R, in which it was held that a direction as to reluctant consent will berequired if the factual narrative of the case demands it.4[17] The reluctant or regretted consent direction is usually traced to this Court's1998 decision in Herbert v R, in which the Court stated that:5In summing-up to the jury on the issues of consent the trial Judge correctlydirected that consent meant a true consent, but a true consent may be givenreluctantly or hesitantly and might be regretted afterwards, but if consent isgiven even in such a manner, provided it is without fear of the application of4 Dibben v R [2018] NZCA 134; and Charlton v R [2016] NZCA 212.5 Herbert v R CA81/98, 12 August 1998 at 3−4.force or the result of actual or threatened force, then the act of sexualconnection would not be rape. He referred to s 128A(2). He directed thatthe Crown must prove not only that the act was without the complainant'sconsent but also that the accused did not believe on reasonable grounds thatshe consented, there being no burden of proof on the accused to prove that hedid believe. He expatiated upon the concept of consent, stating that it must bea full, voluntary, free and informed consent As the Court noted in that passage, the reluctant consent direction of which it approvedwas a corollary to a direction that consent must be "true"; that is, "full, voluntary, freeand informed".[18] This Court applied Herbert in Adams v R, holding that in the particularcircumstances of that case it would have been advisable that a reluctant or regrettedconsent direction was given.6 (There was evidence that the complainant becamedistressed after learning that the appellant's condom had broken, perhaps causing herto regret what she had done.) In several other decisions the Court has accepted thatsuch a direction may be required, while holding that it was not necessary inthe particular circumstances.7[19] In Christian v R the Supreme Court held that this Court had been wrong toconclude that consent required some positive indication from the complainant.8 TheCourt held that consent and reasonable belief in it are often "nuanced and fact-specific" questions for the jury.9 The Judge's analysis in each case "needs to be firmlygrounded in the statutory wording" of ss 128 and 128A.10 That language provides thatconsent cannot be inferred only from the fact that the complainant does not protest oroffer physical resistance; that being so, something else must be found in the words,conduct or circumstances to sustain the inference.11 The Court explained, by way of6 Adams v R CA70/05, 5 September 2005 at [43].7 Chronis v R CA40/01, 24 May 2001 at [21]; Charlton, above n 4, at [50]−[54]; and Dibben,above n 4, at [42]−[51].8 Christian v R [2017] NZSC 145, [2018] 1 NZLR 315 at [43]−[45]. In so holding, the Courtdisapproved of a number of this Court's judgments, including Herbert, in which it appeared thatthis Court was prepared to infer consent from the absence of protest or resistance: at [29]. We notethat the first question in Christian was whether directions must be given on all elements ofthe offence even when not all of them are in issue; see [35]. The Court answered that question inthe affirmative. To decide whether the omission to so direct mattered in that case, the Court wenton to examine what was needed to establish consent and reasonable belief in it.9 At [43].10 At [43].11 At [45].illustration, that the inference might be drawn in a relationship in which certain mutualexpectations have developed over time provided the sexual activity is consistent withthose expectations and nothing has happened to change them.12[20] We observe that the Herbert direction that consent must be "full, voluntary,free and informed" is an embellishment on the statutory language, used to explainthe concept of consent to juries and is therefore arguably contrary to Christian.Section 128 simply provides that the offence of unlawful sexual connection happensif A has sexual connection with person B "without person B's consent" and without A"believing on reasonable grounds that B consents". Consent is not defined. We makethis point because the need for a reluctant or regretted consent direction may bethought to arise from the affirmative way in which consent was explained in Herbert.We emphasise too that the direction of which the Court approved was to the effect thatreluctant consent is still consent provided it is full, voluntary, free and informed.[21] This is not the occasion on which to review the use of reluctant consentdirections following Christian. Mr Lillico cited Christian, but we did not hear fullargument on its implications for the reluctant consent direction. However even underthe Herbert approach, we are satisfied that a direction was not required in this case.[22] We do observe that the need for a reluctant consent direction may depend notonly on the particular facts but also on what the Judge has told the jury about themeaning of consent.[23] In this case Gendall J directed the jury that:13Consent here means true consent, freely given by a person who is in a positionto make a rational decision. A lack of protest or physical resistance does notof itself amount to consent.[24] We accept that the reference to consent being "true consent, freely given"might in some circumstances call for qualification, in the form of a reluctant consentdirection. The question then is whether the absence of such direction may haveoccasioned a miscarriage of justice in the circumstances of this case.12 At [46].13 Summing up, above n 1, at [44].[25] When arguing this point, Mr Lucas invoked the fact that the complainantaccepted she had had reluctant but consensual intercourse with Mr Henry on theevening of 8 September and morning of 9 September, before taking him to hisprobation appointment. He did not identify anything in the complainant's account ofwhat happened after they returned to her house and she was detained to suggest thatshe consented reluctantly.[26] In our opinion the mere fact of previous consensual intercourse falls well shortof requiring a reluctant consent direction in relation to subsequent acts. Eachcomplaint must be considered separately and consent must be gauged at the time ofthe act that is the subject of the charge. So far as this case is concerned we make twopoints. First, this is not a case in which the complainant is said to have behavedconsistently with past behaviour in the context of a relationship in which expectationshad developed over time, such that her consent might be inferred as the Supreme Courtsuggested in Christian. Second, there is nothing in the evidence to suggest reluctantconsent. She complained of three rapes between being detained on 9 September andthe morning of 10 September, when she escaped. On her account she told him she didnot want sex on the first occasion and on the second she was crying during intercourse.As Mr Lillico submitted, the best evidence for the defence was her acceptance thatduring the rapes she "just lay there". Even if it could be divorced from her explanationfor behaving in that way — she was submitting to the inevitable — it would not gonearly far enough to justify an inference of consent, reluctant or otherwise.[27] For these reasons we do not accept that a reluctant consent direction wasrequired in this case.[28] Nor was a regretted consent direction required. That would have entaileddirecting the jury that consent must be assessed at the time of the relevant act,14 notsubsequently. In this case intercourse happened while she was detained and she14 Which may include "sexual connection" that continues after consent has been withdrawn:Crimes Act 1961, s 2.complained of rape immediately after she was freed. We note in passing that therewas no direct challenge to the kidnapping conviction on appeal.15Lies direction for the complainant[29] The Judge explained in summing-up that the defence had pointed toinconsistencies in the complainant's account and there were suggestions that she mayhave lied. He then gave a lies direction for her, in the following terms:[28] Depending on your assessment of a witness, you may conclude thatan inconsistency means someone has not told the truth. Or you may concludenot that they have consciously lied but they may be mistaken. They arematters for you. It is up to you to place what weight you consider appropriateon such a conclusion. Just because a witness may not have told the truth abouta particular aspect of their evidence, or may have been mistaken about oneparticular aspect, it does not mean they are wrong or mistaken about otheraspects. As I have said to you, it is up to you to accept those parts of a witness'evidence that you do accept and you can reject other parts.[30] As Mr Lucas submitted, this was unorthodox. Under s 124 of theEvidence Act 2006, a judge must give a lies direction where the Judge considers thatthe jury might place undue weight on a lie told by the defendant. No such requirementattaches to a complainant's evidence. Mr Lucas submitted that a lies direction maybolster the complainant's account and diminish the impact of a lie on her credibility,citing this Court's decisions in Ngatai v R and Khairati v R.16[31] Mr Lillico accepted that the lies direction was inadvisable. However, a judgeis not precluded from giving a lies direction for a complainant or indeed any witness.The question is whether a miscarriage resulted. The substance of the direction in thiscase was simply that the jury might accept parts of her evidence and reject others.This Court has from time to time allowed appeals where a lies direction was given fora complainant who admitted lying, detracting from the impact of lies onthe complainant's credibility,17 but the complainant in this case did not admit that she15 There was clear evidence of kidnapping, as noted at [7] above. It was not directly challenged onappeal. The notice of appeal challenged the directions on consent to intercourse, as noted above.It extended to the kidnapping conviction through the lies direction and the alleged inconsistencyof other verdicts, notably charges 6 and 7. In combination with the complainant's lack ofcredibility the inconsistent verdicts were said to render the kidnapping verdict suspect.16 Ngatai v R [2016] NZCA 352; and Khairati v R [2017] NZCA 31.17 Ngatai, above n 16, at [23]; Khairati, above n 16, at [33]; and Bensitel v R CA133/06,5 October 2006 at [39] and [42].had lied. In this case there was no specific lie identified, no point on which thecomplainant was shown to be untruthful and which was central to the defence case;that being so, the direction did not occasion a miscarriage.[32] We agree that the direction ought not to have been given. We note that it wasgiven immediately after the Judge noted that Mr Lucas had suggested there wereinconsistencies, and perhaps embellishments and lies, in her evidence. We do notagree, however, that it occasioned a miscarriage in the circumstances.[33] We begin by comparing this case with those cited by counsel. In Ngatai v R,the appellant was charged with sexual connection with a young person, beginningwhen she was 14 and lasting about four and a half years. This relationship he keptsecret from his partner. The complainant admitted in evidence that she had lied in herevidential interview by claiming that intercourse had occurred many times before shewas 16; in fact it had happened only three times. At the end of her evidence thetrial Judge asked her about the appellant's relationship with his partner and whetherhe had explained how he managed to account for his absences from home.The defence case was that she had told deliberate lies on important matters. In hissumming up the Judge described her admission that she had lied as "baffling" and"surprising" and mused that "sometimes the brain and the mouth are not necessarilyconnected".18 He suggested that she may have minimised the offending to lessen theimpact on the appellant. He then gave a lies direction for both the appellant and thecomplainant. So far as the appellant was concerned, the Judge stated that he had"obviously lied" to his partner about where he was "on all these occasions".[34] This Court found the directions objectionable on a number of grounds.19The Judge had stepped into the arena by asking questions of the complainant aboutwhat the appellant had told his partner. He then drew attention to what he erroneouslydescribed as the appellant's obvious lies in the summing-up. The Judge's direction inrelation to the complainant's admitted lie ought to have been limited to saying that thejury could take it into account when assessing her credibility and reliability.20 Instead18 Ngatai, above n 16, at [12].19 At [26].20 At [20].the Judge had invited the jury to consider what explanations there might be for lyingand offered speculative suggestions as to what those explanations might be.21 The"overall effect" of the Judge's handling of lies was prejudicial to the defence.22[35] In Khairatai v R the complainant had also admitted during evidence that shehad lied when asked whether she had engaged in consensual sex with the appellantafter the incidents complained of. She maintained the lie only to admit it the followingday after talking to a police officer, through whom the incident was broughtto the attention of defence counsel.23 Naturally this lie was the focus of the defenceclosing. In his summing up the Judge discussed the defence case, identifying the lieas the best point for the defence, then followed it with a lies direction that appeared toapply to both appellant and complainant.24[36] This Court considered that the direction was confusing and noted that the Judgehad postulated reasons why the complainant might have lied, which the jury mightunderstand as minimising or explaining away the significance of her lie.25 The numberand degree of deficiencies risked minimising the significance of the lie.[37] In Bensitel v R a form of lies direction was given for the complainant, who hadadmitted lying to immigration authorities.26 Again, the lies direction was only one ofa number of reasons for allowing the appeal. This Court considered that the directionexacerbated a risk that the jury would consider the trial was a straight contest betweenthe complainant and the appellant,27 so (we infer) misapplied the burden and standardof proof. It also noted that the Judge had reminded the jury of the complainant'sexplanation, which risked adding weight to that explanation and minimising thepossible significance of her lies.21 At [21].22 At [23].23 Khairati, above n 16, at [16].24 At [21].25 At [28]−[30].26 Bensitel v R, above n 17.27 At [39].[38] This case is not comparable to any of those just cited. To begin with, themistaken lies direction would be the only ground for allowing the appeal. We havealready rejected the first, and we go on below to reject the third.[39] Next, we do not consider that the lies direction conveyed the impression thatthe question for the jury was whether they preferred the complainant's account toMr Henry's. His account was not in evidence.[40] Next, there was no admitted lie and no alleged lie that was said to be central tothe case. Rather, the gist of the defence closing address was that the complainant'sentire account was untruthful because it did not make sense or was inconsistent withother evidence. Some specific inconsistencies were identified, as illustrations of thisgeneral point. For example, counsel pointed to the absence of semen on the tissuesshe said had been used to wipe her after the last rape. Counsel also identified somespecific lies, such as her failure to disclose at the outset of her police interview thatshe had had contact with Mr Henry after his release on 5 September. None can bedescribed as central, and none was the subject of comment by the Judge.[41] Finally, Gendall J did not identify or speculate on the complainant's reasonsfor lying or offer up particular reasons why she might have done so in thecircumstances. He gave a general direction that people can lie for other reasons, suchas to protect someone else or to cover up something else or were panicked orembarrassed. He did not link that to any evidence in the case. His directionsaccordingly did not detract materially from the impact of any specific lie. In thecircumstances we consider that the lies direction did not add materially to the directionhe had already given that the jury could accept some parts of a witness's evidence andreject others. Indeed, it will be seen in the passage quoted above at [29] that heexpressly referred to that point when giving the lies direction.Inconsistent verdicts[42] Mr Lucas argued that there was no factual basis for different verdicts on somecharges and this pointed to compromise or some illegitimate reasoning process by thejury such that none of the guilty verdicts can be considered safe.[43] Counsel focused on the different verdicts for charges 6 (not guilty) and 7(guilty) and for charges 9 (not guilty) and 10 (guilty). Charges 6 and 7 were maleassaults female charges in which the complainant alleged that Mr Henry had chokedher twice in quick succession. Charge 9 was a male assaults female charge in whichthe complainant said she was punched twice on the back of the head before beingraped, which was charge 10.[44] Charges 6 and 7 followed the complainant saying something to Mr Henry thathe did not like, causing him to tell her she was a smart bitch and choking her when shetried to walk away. The second incident followed the first in close succession. Shesaid that on the first occasion he choked her for about 15 seconds while she tried towalk away. He then released her and she begged him to leave her alone. Her evidenceabout the choking on the second occasion was more specific; she said that he had gother from behind, tilted her head back and choked her, causing her to gasp for air. Therewas medical evidence of bruising on her neck, but it was confined to two bruises onone side.[45] We are not persuaded that the verdicts are inconsistent. They were separateincidents, separately described. We do not accept that the evidence is sointerconnected that both charges must have resulted in the same verdict.28 UltimatelyMr Lucas's point was that they must have found the complainant's account lackedcredibility; and if so, they ought to have reached the same conclusion on charge 7.We do not agree. The medical evidence corroborated her account, and the jury mayhave found that evidence more consistent with the second incident than the first.[46] We do not accept that the verdicts for charges 9 and 10 are inconsistent either.She described being hit after making a "smart" comment. That incident immediatelypreceded the rape, causing her to lie down on the bed and submit, but it was notnecessary that the jury find the assault proved before concluding that intercourse wasnon-consensual. The doctor who examined the complainant did not note any injury tothe back of her head, which sufficiently explains the verdict on charge 9: the jury may28 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [68].have found the absence of medical evidence sufficient to leave them with a reasonabledoubt.[47] It follows that we also reject the submission that the verdicts on the othercharges are unsafe. The conviction appeal fails.The sentence appeal[48] As noted, Gendall J calculated a determinate sentence of 12 and a half yearsimprisonment.29 That is not challenged on appeal. He recognised that because thisoffending invoked a second strike warning Mr Henry would serve the entire sentence.But for that he would have imposed a minimum period of 8 years had he imposed thedeterminate sentence.30 He instead decided that preventive detention was required.[49] The Judge reviewed Mr Henry's history,31 noting that he has accumulated 71convictions as an adult. He has tended to reoffend rapidly following release orsentence expiry. He has 16 convictions relating to violence. His victims include hisparents, a woman and her children with whom he was staying, and two intimatepartners. He has also behaved aggressively while in prison, including against his ownlawyer.32 In 2010 he assaulted his then partner when she was five months pregnant.He then assaulted and threatened to kill her in 2011.33 In 2012 he assaulted her andabducted his son in breach of a parenting order. He initiated a high-speed chase withthe police. He stopped and handed his son over, but then returned to his vehicle anddrove straight at the police officer who was carrying the boy. His offending happenedin breach of a protection order.[50] The Judge noted the aggravating factors of the present offending:34 violenceincluding strangulation, detention and home invasion; premeditation; victimvulnerability; harm caused to the victim; and the scale of the offending. He found,and we agree, that Mr Henry has a clear pattern of serious violent offending.29 Sentencing notes, above n 1, at [31]−[32].30 At [35].31 At [17].32 At [42].33 At [18].34 At [25].[51] The Judge reviewed the two health assessors reports.35 Both assessors agreedthat Mr Henry is at a high risk of further violent sexual offending. Both noted a patternof offending against intimate partners, a lack of insight and tendency to blame thevictims. One assessor, Ms Kingi, concluded that:Mr Henry's risk assessments demonstrate that he is at high risk of furtherviolence, particularly in the event he enters into another intimate relationship.I have provided the Court with a statement about the contextual factors thatare likely to drive recidivism of this nature. In sum, Mr Henry uses coercivecontrol to maintain dominance over women he views as partners, whichinevitably creates conflict, something he cannot tolerate without the use ofviolence. His violence in this life domain has escalated further and nowincludes rape, something he denies. Mr Henry's hostile attributions andbeliefs about women were easily activated in the presence of both myself andthe other health assessor, and it was difficult for him to contain himself. Variables empirically shown to be significantly associated with domesticviolence and sexual offending in this context are consistent with known riskmarkers associated with offending in general and Mr Henry's risk profilespecifically, as demonstrated by the violence risk assessment undertaken forthis report. Those risk markers are, a prior domestic violence history, previouslengthy prison term, prior failure to adhere to legal conditions (bail, parole,probation and non-contact orders), and substance abuse. Further, Mr Henryhas so far demonstrated that his offending history and personality functioningare consistent with those observed in life-course persistent offenders. Of note,sexual offending denial has not reliably been shown to be a risk factor forrecidivism or improved treatment outcomes if directly targeted. However,Mr Henry's denial will be a responsivity issue for future intervention.[52] The other, Ms Fon, concluded that:If he were to re-offend, Mr Henry's history indicates that he is likely toviolently and sexually re-offend within his interpersonal relationships. Due toa disregard for authority, he is likely to breach any conditions ofnon-association orders or Family Violence orders, and will either manipulateor force his way into a partner's or ex-partner's house, and use intimidatorytactics to gain victim complicity. He may use physical force and coercion torestrain and sexually violate his victims, and from the nature of reported factsfrom his index offending, it is likely that he will derive a sense of pleasurefrom observing his victim(s) in pain or distress. Mr Henry is also likely tothreaten and use violence against his victims, independent of any sexualviolence. In these instances, he may attempt to strangle his victims. He isalso likely to use other forms of physical violence including kicking andpunching. Given Mr Henry's unpredictable and volatile nature, it is likely thatany number of triggers may serve to precipitate his violence, including theabuse of substances, relationship conflict, others' non-compliance, andconfrontation with those in authority.35 At [44]−[55].[53] Mr Henry has previously engaged in intensive group treatment and individualtherapy. He completed 43 sessions at the Matapuna Special Treatment Unit, but wasexited for persistent maladaptive and disruptive behaviour that paralleled his violentoffending. He also engaged in 11 individual psychology sessions. There was someevidence that he had developed a degree of insight into his behaviour, but he plainlyfailed to draw on that knowledge. In interview he was reluctant to repeat the Matapunaprogramme as he felt he would not be treated fairly. He claimed that he would bewilling to do a similar programme in another prison, and claimed that he hadcompleted a 'Stopping Violence' programme during his current remand and had donewell. There was little evidence of this in his dealings with the assessors.[54] Ms Fon considered that risk reduction would require intensive treatment,beginning with the High Risk Personality Programme. After successfully completingthat programme, which would develop skills in distress tolerance and mood regulation,he could be referred to the adult sex offending treatment programme. In total thiswould take three or more years of therapeutic input. Miss Fon considered that it islikely that progress will be very slow. His entrenched beliefs, habitual aggression andnegative attitude are likely to persist and will impede progress. His current attitudedoes not suggest that he would be likely to take the opportunity presented by suchtreatment.[55] Mr Lucas submitted that the Judge was wrong to find an absence or failure ofeffort by Mr Henry to address the causes of his offending. The Judge was also wrongto decide that a lengthy determinate sentence would not suffice to protect society, inconjunction with an extended supervision order (ESO) if necessary.[56] We do not accept these submissions. In our opinion the Judge's conclusionswere inevitable. We consider that without successful treatment Mr Henry's risk ofserious violent offending, likely against intimate partners, will remain very high at theend of a determinate sentence. As Mr Lillico submitted, Mr Henry has not successfullycompleted any intensive, offence-specific programme. It is clear that all attempts attreatment have failed. There is little evidence that he has gained any insight. His riskfactors are deeply entrenched and nothing in the materials before us suggests that heis committed to addressing them. As the Judge noted, a determinate sentence wouldprovide him with little incentive to engage in rehabilitation because he would have nopossibility of parole.36 It is unlikely that he would comply with an ESO; he has shownlittle willingness to comply with conditions imposed on him while in the community.Decision[57] The conviction and sentence appeals are dismissed.Solicitors:Crown Law Office, Wellington for Respondent36 Sentencing notes, above n 1, at [59].