WARREN v R [2022] NZCA 179

WARREN v R [2022] NZCA 179 [11 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA510/2017[2022] NZCA 179BETWEEN RHYS RICHARD NGAHIWI WARRENAppellantAND THE QUEENRespondentHearing: 28 March 2022Court: Dobson, Woolford and Hinton JJCounsel: Applicant in person by AVLJ-A Kincade QC as Counsel AssistingJ E Mildenhall for RespondentJudgment: 11 May 2022 at 3 pmJUDGMENT OF THE COURTThe application for leave to withdraw the notice of abandonment of an appealagainst conviction and sentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)Introduction[1] In 2017, the applicant, Mr Warren, was convicted of attempted murder of twopolice officers, using a firearm against a third and wounding a fourth officer with intentto cause him grievous bodily harm. He was sentenced by Brewer J who concludedthat in terms of a finite sentence, a term of 19 years' imprisonment with a minimumperiod of imprisonment (MPI) of 10 years would be appropriate.1 However, the Judgewent on to find that the length of finite sentence was insufficient to address the risk ofserious reoffending. Accordingly, Mr Warren was sentenced to preventive detentionwith a minimum period of 10 years' imprisonment.2[2] Mr Warren had represented himself at trial. The High Court appointedMr Mansfield as counsel assisting. After sentencing, Mr Warren lodged an appealagainst conviction and sentence in September 2017. In late-2017 this Court appointedMr Ewen as standby counsel to assist Mr Warren in pursuit of his appeal.[3] However, in early-2018 Mr Ewen filed a memorandum indicating thatMr Warren rejected the prospect of any assistance from him. Mr Ewen conveyed tothe Court Mr Warren's attitude that he was not subject to the Court's jurisdiction.[4] In August 2018 Mr Warren wrote to the Court stating that he did not accept theCourt's jurisdiction and that he was disengaging from the court proceedings and thecriminal justice system. That step was followed in December 2018 by Mr Warrenfiling a signed and witnessed notice of abandonment of his appeal.[5] On 2 March 2021 the Court received a notice of appeal on the form for astandard appeal against conviction, completed by Mr Warren, purporting to initiate afresh appeal against conviction and sentence. Since its receipt it has been treated asan application to withdraw his notice of abandonment of the appeal filed in 2017.3[6] Given Mr Warren's indication that he intended to represent himself,Ms Kincade QC was appointed as counsel to assist the Court. Ms Kincade filedthorough submissions addressing arguments in support of Mr Warren being allowedto withdraw his notice of abandonment of the original appeal, and advancingarguments on the merits of his appeals against conviction and sentence.[7] Throughout all stages of the proceedings, Mr Warren has asserted that the lawsof New Zealand do not apply to him on the basis of Māori sovereignty. The courts'1 R v Warren [2017] NZHC 1913 [Sentencing notes] at [50] and [55].2 At [86].3 Court of Appeal (Criminal) Rules 2001, r 35.consistent response has been that there is no legal basis for this claim. The propositionwas, for example, rejected by the Supreme Court when Mr Warren sought leave toappeal a pre-trial judgment of Brewer J to that effect.4 Most recently, on 25 February2022, Mr Warren conveyed a demand that the Court immediately order his release,relying on the same proposition that the laws of New Zealand do not apply to him. Inthe event that the Court did not do as he asked, he indicated that he would not appearat the hearing of the application to withdraw the notice of abandonment of his appeal.[8] On 22 March 2022 the Court issued a minute recording that it would notcomply with Mr Warren's demand to immediately order his release and that it wouldproceed to hear argument on the application in his absence should he maintain hisstance that he would not appear. The minute emphasised that it was open to Mr Warrento appear should he change his mind.[9] On 25 March 2022 the Court received a further communication fromMr Warren. It repeated the theme of previous communications, requiring orders forhis immediate release on the ground that he is not subject to the laws of New Zealand.The document repeated the earlier advice that he would not attend the hearing.[10] The Registry was advised by Corrections personnel at Waikeria Prison on themorning of the hearing that Mr Warren had confirmed his intention not to appear.[11] After the hearing had commenced and the Court had indicated that the hearingwould proceed in the applicant's absence, a short adjournment was called to transferthe hearing from VMR, which was causing technological difficulties, to MS Teams.However, at approximately 10.20 am, the Court was advised by Ms Kincade's juniorthat the applicant now wished to participate in the hearing. There was a break fortechnological reasons and the hearing resumed at approximately 10.30 am withattendance by the applicant via audio link. Mr Warren repeated the same ground as hehas relied on throughout. That argument must fail. We accept the reasoningpreviously given by this Court that New Zealand courts are subservient to Parliament4 Warren v R [2016] NZSC 156 at [4], noting that "similar arguments have been considered andrejected by the courts on numerous occasions", citing R v Mitchell CA68/04, 23 August 2004 andR v Miru CA65/01, 26 July 2001. See also the decision of this Court on Mr Warren's bail appealwhere the same argument was rejected: Warren v R [2016] NZCA 490 at [9]–[10].and must apply an Act of Parliament as enacted.5 The relevant criminal legislationapplies to Mr Warren. His argument would require the "political end of change to thecriminal justice system rather than the exercise of the judicial function of appellatereview under the present statutory criminal justice system".6 Mr Warren is notentitled to put himself outside the laws of New Zealand.The offending[12] In March 2016 cannabis was spotted in the property occupied by Mr Warrenand in an adjoining property by an aerial police search. Police personnel on the groundwere directed to the properties to destroy the plants. While doing so, police officersheard gunshots from the vicinity of Mr Warren's house and the Armed OffendersSquad (AOS) was called. AOS personnel surrounded the house and after unsuccessfulurging using the telephone and a loudhailer for any occupants to come out, armedpolice entered the house.[13] Mr Warren was hiding, holding a loaded rifle, some distance from the point ofentry. At close range he fired at the leading armed officer, Sergeant White. The Judgefound on the evidence at trial that Mr Warren had pointed the rifle at the officer'shead.7 Fortuitously, the bullet deflected off the officer's rifle with a number offragments of the bullet wounding the officer in the face. Other fragments of the bulletstruck a second officer, Constable Mauheni who was behind Sergeant White, who wasbadly wounded. Numerous other officers, in adjoining rooms to where Mr Warrenwas, fired through walls in the direction of Mr Warren's shot, intending to preventMr Warren from firing further shots.[14] Mr Warren fired two further shots in this initial exchange, fragments of one ofwhich struck a third officer, Constable Flinn, in the leg. All the police officers whohad entered the house then left, but armed officers remained in the area to continueobserving the house.5 R v Mitchell, above n 4, at [13]–[14].6 R v Miru, above n 4, at [10].7 Sentencing notes, above n 1, at [10].[15] On exiting the house, one of the officers had dropped a police-issue Glockpistol and approximately an hour after the first altercation Mr Warren used it to shootat another officer, Sergeant Marsh, who was lying prone on the ground some 35 metresfrom the front of the house. Although Mr Warren denied firing the pistol, the Judgewas satisfied on the evidence at trial that he had fired two shots from the pistol in thisaspect of the offending.8 One of the shots wounded Sergeant Marsh in the hand.[16] The initial shooting of the police officers in the house resulted in one charge ofattempted murder of Sergeant White, one of wounding Constable Flinn with intent tocause him grievous bodily harm, and one of using a firearm againstConstable Mauheni. The shots from the Glock pistol resulted in a second charge ofattempted murder, this time of Sergeant Marsh.[17] At sentencing the Judge adopted a total starting point for the offending againstthe three officers in the house of 14 years' imprisonment.9 He assessed separatelythe attempted murder of Sergeant Marsh. On a standalone basis the offending againstSergeant Marsh would have attracted a starting point of 12 years' imprisonment buton the application of totality this was reduced to four years, and added to the startingpoint for the first group of offences to produce a total starting point of 18 years'imprisonment.10 Relevant previous convictions would have resulted in an uplift of afurther year resulting in an appropriate finite sentence of 19 years' imprisonment.11 Ifimposed, the Judge indicated that it would have been subject to an MPI of 10 years.12[18] However, the Judge was satisfied that preventive detention was required andthat sentence was imposed with a minimum period of imprisonment of 10 years.13In reaching that conclusion, Brewer J relied on health assessors' reports which hadbeen sought under s 87 of the Sentencing Act 2002, which discussed the prospect ofMr Warren committing further qualifying violent offences.148 At [17].9 At [21] and [38].10 At [46] and [48].11 At [49]–[50].12 At [55].13 At [85].14 At [68]–[78].Grounds for withdrawing notice of abandonment[19] There are two circumstances in which this Court will grant an application forwithdrawal of a notice of abandonment of an appeal.15 The first is if the abandonmentis not the result of a deliberate and informed decision to the extent that it should berecognised as a nullity. The second is where an applicant satisfies the court thatexceptional circumstances exist which require the abandonment to be withdrawn inthe interests of justice. That assessment is to be undertaken having regard to theimportance of finality in criminal proceedings and the circumstances in which theapplicant originally committed to abandoning the appeal.16Was the abandonment a nullity?[20] Ms Kincade suggested that the lack of legal advice that Mr Warren hadreceived at the time he abandoned his appeal meant the decision was not informed andcould be considered null and void. An abandonment will be void where it was not theresult of a "deliberate and informed decision", meaning that "the mind of the applicantdid not go with his act of abandonment".17 But the fact that an appellant withdrawshis or her appeal without legal advice cannot of itself render the abandonment null andvoid.18[21] Mr Warren rejected any input from Mr Ewen and was acting on his own behalfin late 2018 when he committed to abandoning his original appeal. In the newnotice of appeal lodged in March 2021, Mr Warren stated that it had taken him untilthen to learn the law sufficiently and research the evidence that had been given at histrial to enable him to pursue an appeal. He also stated that previous documents he hadfiled should be treated as null and void. It might be inferred from that statement thathe was unaware of the effect of the earlier abandonment of his original appeal.[22] Mr Warren's notice of abandonment has his signature endorsed with the words"under duress", but that appears on a number of his documents including his early15 R v Cramp [2009] NZCA 90 at [26].16 At [26], referring to R v Bridgeman CA87/04, 10 November 2005 at [9].17 R v Medway [1976] QB 779 at 798, adopted in New Zealand in R v MacKay [1980] 2 NZLR 490(CA) at 491.18 Eschbank v Police (1989) 5 CRNZ 157 (HC).2021 notice purporting to commence a fresh appeal. The phrase is used to reflect hisprotest at having to participate in legal processes at all, rather than claiming that hewas pressured to complete the document in question. Three months lapsed betweenMr Warren writing to the Court in September 2018 to advise that he rejected theCourt's jurisdiction and was withdrawing his appeal, and the filing of his noticewithdrawing his appeal. The abandonment was therefore a deliberate step, not takenon the spur of the moment.[23] Despite the research and learning he referred to in March 2021, the primaryground relied on by Mr Warren remains the untenable one that he has asserted fromthe very outset. From all of his communications it is clear that he appreciated thefinality of abandoning his appeal in late 2018 and has had a change of heart morerecently. We are not persuaded that his notice of abandonment should be treated asnull and void.Exceptional circumstances?[24] The second possible ground for withdrawing the notice of abandonmentrequires at least a provisional view to be taken of the prospective merits of the appealin order to assess whether the interests of justice require that notice to be set aside.We analyse Mr Warren's case from the perspective that there would need to be asubstantial prospect that a miscarriage of justice would occur if his appeal was notreinstated.Does the proposed conviction appeal raise a substantial prospect of a miscarriage ofjustice?[25] Ms Kincade made a number of criticisms of the Judge's summing-up to submitthat a miscarriage of justice had occurred, or was likely to have occurred.(a) Lies direction[26] Mr Warren gave evidence in his own defence. In the Crown closing address,the jury was told that Mr Warren had been "quite dishonest about certain parts of theevents and what he says that he knew and didn't know what he says he did and didn'tdo". In his summing-up, Brewer J raised the topic of lies in the following terms:[11] I need to say something to you about lies. That is because the Crownsays that virtually all of Mr Warren's evidence in this case is lies. AndMr Warren has submitted to you that quite a number of Crown witnesses havealso told you lies and have colluded with each other to deceive you.[27] The Judge went on to give a relatively standard lies direction as contemplatedin s 124 of the Evidence Act 2006. His direction included the following:The law says it is important for you to understand that people tell lies for allsorts of reasons. If you do decide that Mr Warren has told a lie, you don't justwrite him off for that reason. You need to decide why he told the lie and thenput it into its appropriate context in the evidence. And don't jump to theconclusion that because he lied about something then he must have lied abouteverything else. And it is very important not to jump to the conclusion that ifhe lied about something he must be guilty. So, be very careful before youdecide that a lie, if you have decided there is one, indicates guilt.[28] The Judge added:The same is true of the Crown witnesses. If you were to find that one of themhad lied, well then of course you would start looking very carefully at all therest of their evidence. But the principle is still the same. Don't jump toconclusions, and put it into context.[29] Ms Kincade submitted that the Judge had overstated the extent to which theCrown contended Mr Warren had told lies, and that a proper lies direction ought tohave provided specific examples in directing the jury as to how they should deal withlies. Further, she submitted the Judge's lies direction confusingly mixed a directionabout finding that the defendant had lied with a direction about any lies the juryconsidered had been told by Crown witnesses.[30] There was an element of overstatement in the Judge attributing to the Crownan assertion that "virtually all of Mr Warren's evidence in this case is lies", but onlyin a very minor sense. The Crown closing address was a thoroughly reasoned rejectionof Mr Warren's explanation for his conduct on the day of the offending. First, theCrown contrasted Mr Warren's evidence claiming he was fearful, with text messagessent to friends and whānau as the events unfolded. The jury was invited to find thatthe attitudes expressed in those texts were dramatically different from Mr Warren'sevidence of his frame of mind at the time. In addition, the closing address contrastedMr Warren's explanation of the circumstances in which he fired at the police with theevidence from the officers. Jurors would readily have taken the view that there werestark differences between Mr Warren's explanation and the evidence of the policeofficers. The Crown closing urged rejection of Mr Warren's version. That is notsignificantly different from a summation that virtually all of his material evidence wassaid to be untrue.[31] Ms Kincade submitted that the Judge's overstatement ignored several factualmatters on which Mr Warren's evidence agreed with, or did not dispute the evidenceof Crown witnesses. That may be so, but the Crown closing focused on the issues indispute on which it had to discharge the onus and there were disputes as to hiscredibility on a significant majority of those points. We do not accept that theoverstatement in the Judge's summing-up risked misleading the jury in theirassessment of the evidence.[32] The second criticism of the lies direction was that use of specific examples ofevidence that the jury may find to be lies should have been provided to improve theirunderstanding of the s 124 direction. Such specific examples are desirable in manycases, but they are not mandatory. Here there were stark differences between theevidence of the police officers who observed Mr Warren and other Crown evidence,and his own recollection of his actions at the time. We agree with the Crown that inthis case, where so many of Mr Warren's claims were said to be lies, it would havebeen impractical to refer to all or even most of those examples. Choosing specificexamples from his evidence of potential lies would risk giving a prominence to thoseexamples which could distract the jury.[33] The lack of specific examples did not impair the clarity of the message that hadto be given about lies. The necessary elements of a s 124 direction were clearlyconveyed.[34] The third aspect of Ms Kincade's criticisms of the lies direction was that it wasconfused by reference to Mr Warren's contention that there had been lies told byCrown witnesses. The terms of s 124 of the Evidence Act focus explicitly on thepossible need for a warning in respect of evidence that a defendant lied before orduring the proceedings. Ms Kincade cited the decision in Khairati v R.19 In that case,19 Khairati v R [2017] NZCA 31.the complainant had accepted that she had lied, and the Judge's s 124 direction mixedup the prospect of the jury finding that both the complainant and Mr Khairati had lied.Unsurprisingly in that context this Court found it "unorthodox and risky" to refer in as 124 direction to the prospect of lies by witnesses other than the defendant.20Ms Kincade submitted the contrasting prospects of who the jury should believe led tothe risk of jurors treating their task as a decision on which version they believed, ratherthan an assessment of whether the Crown evidence that they did believe hadestablished the elements of the offence beyond reasonable doubt.[35] The question is whether the reference to lies by other witnesses has impairedthe clarity of the message required to be conveyed in a s 124 warning or led the juryastray. In the circumstances of this case, we are satisfied that it did not.The summing-up made it clear that Mr Warren raising self-defence did not alter theonus on the Crown to prove all elements, including proof that Mr Warren did not actin self-defence.[36] We accept Ms Kincade's submission that the lies direction in this case wasimportant because the jury would necessarily have to consider Mr Warren's credibilityto determine the merit of his self-defence claim. They had to consider his evidence ofwhat he was reasonably thinking at the time of the conduct giving rise to the charges.But for the reasons given, we do not consider there was any error in the lies directiongiven by the Judge that would have led the jury astray on this issue.(b) Mischaracterisation of self-defence[37] Ms Kincade submitted that the Judge's summing-up mischaracterised thedefence Mr Warren was advancing on his own behalf in relation to the first shot.Mr Warren's evidence and his closing address to the jury had raised both the prospectthat the rifle had gone off by accident on the first occasion and the prospect that hefired in self-defence. In overview, the Judge stated that Mr Warren's case was that hewas terrified and shot only to defend himself. Later in the summing-up when dealingwith the first charge of attempted murder the Judge said:20 At [27].It has to be a deliberate shooting. Mr Warren, in his address to you, said on acouple of occasions that he accidentally fired the first shot, but then on otheroccasions he appeared to be saying that he was merely frightened andpanicked and fired. That is something that you are going to have to resolveby looking at the evidence and, in particular, the evidence that Mr Warren gavein the trial, both when he was giving his side of the story at the beginning andthen when he was in cross-examination.[38] Ms Kincade submitted that these comments from the Judge conveyed thatMr Warren had raised inconsistent or contradictory explanations by way of defence.Arguably, this could have created an adverse impression with the jury when, onMs Kincade's analysis, Mr Warren could be seen as advancing self-defence as anexplanation for his conduct overall, but that having armed himself out of fear, his riflehad first fired accidentally when he was panicked.[39] These passages in the Judge's summing-up were an accurate reflection of whatMr Warren had said in evidence, and in his closing address. We do not accept that theway the Judge's comments were expressed created a risk of the jurors thinking that thedefence lacked credibility because of a suggestion from the Judge that there wereinconsistent or contradictory aspects of that defence.[40] Indeed, the Judge's summing-up finessed the prospects of findings ofaccidental discharge of the rifle and self-defence in terms that reflected the optionspossibly available to Mr Warren. The Judge provided a relatively extensive summaryof Mr Warren's version of events leading to the first shot being fired. This wasexpressed in terms paraphrasing Mr Warren's evidence from his perspective: and I'm shaking with fear and the rifle goes off and then all mayhem breaksloose; I didn't fire with the intention of killing Constable White, I didn't firewith the intention of hurting Constable White, it just happened that way; and at the time that I fired that rifle, if you find it to be an intentional firing ofthe rifle, all I was trying to do was defend myself because I fully expected thePolice to shoot me dead any moment.[41] Ms Kincade next submitted that the Judge misdirected the jury on the elementsof self-defence. She criticised the absence of an explicit recognition by the Judge thatan initial aggressive act by the defendant in some form of pre-emptive strike couldalso constitute a form of self-defence. However, that prospect was adequatelyacknowledged by the Judge:If Mr Warren honestly believed that the Police were going to shoot him thenhe would be entitled to use reasonable force to defend himself from being shot.[42] Ms Kincade criticised the Judge's question trail, for addressing the questionson the prospect of self-defence in what she submitted was the wrong sequence.The jury were directed to determine all the elements of the charge before consideringself-defence. She submitted that a jury should be directed to consider a defendant'sframe of mind relative to the prospect of a reasonable belief in the need forself-defence, before considering issues of whether the Crown had made out therequisite intention to carry out the actus reus of the offences involved. Ms Kincadeargued that if a jury is required first to be satisfied that the defendant had the requisiteintention, then as a matter of logic the prospect of self-defence becomes irrelevant.The jury would be assessing the evidence on the defendant's state of mind (i.e., as towhether there was a reasonable basis for believing in the need for self-defence), whenthey had closed minds because of the answer to the earlier question as to whether theCrown had made out the requisite intention. Ms Kincade cited this Court's decisionin Mafi v R which included the following:21[26] We accept that in similar types of trials this Court has recommendedthat as a matter of logic a Judge should direct the jury to consider self-defencebefore any issue of intention. However, as Mr Carruthers submits, a failure tofollow this course will not necessarily result in miscarriage of justice. That isbecause, regardless of the order in which the jury addressed the issues, it didso according to the Judge's express direction that self-defence was a completedefence to the charge.[43] We agree that it would generally be preferable for the jury to be directed toconsider self-defence before the mental elements of the offending. But we also agreethat a failure to do so will not lead to a miscarriage of justice where there is little riskthat the jury would have erred in their consideration of self-defence. This case is likethat in Mafi, given that it was perfectly clear to the jury that if the Crown could notnegate a reasonable prospect of self-defence, then that would be a complete defenceto each of the charges in which it was raised. That position is obvious from the Judge'sexplanation of the question trail. The specific questions relevant to making out the21 Mafi v R [2015] NZCA 408 (footnotes omitted). See also Stretch v R [2020] NZCA 195 at [23].For an example of a case where the order in which the jury considered self-defence and the mentalelements of the offending were material, see Tobin v R [2020] NZCA 66 at [28].defence were identified and it was clear that the jury's answers to those questions couldlead to a finding of not guilty despite any earlier findings.[44] Ms Kincade has made the most that counsel possibly could of criticisms of thesumming-up. Having reflected on her arguments, we are satisfied that there is nosubstantial prospect of a miscarriage, so as to trigger a concern that the interests ofjustice require the Court to set aside the notice of abandonment.Does the proposed sentence appeal raise a substantial prospect of a miscarriage ofjustice?[45] Ms Kincade made separate submissions on the prospects of a successful appealagainst sentence.[46] At sentencing the Judge determined that there were no mitigating factors thatwould justify a discount from the final period of the finite sentence he identified.22There was no cultural report under s 27 of the Sentencing Act 2002 tendered to theCourt on Mr Warren's behalf.[47] Nor did other reports prepared identify any mitigating factors or provide reasonto think Mr Warren's prospects of rehabilitation were high. The pre-sentence reportprepared in May 2017 was completed without positive input from Mr Warren. Heinitially indicated he would participate in an interview and then refused. On the basisof reported attributes, the report placed his risk of reoffending and harm to others asvery high.[48] Of the psychologist's reports prepared under s 88 of the Sentencing Act, thefirst prepared in June 2017 by a Waikato District Health Board psychologist indicatedthat there was no mental illness present, but declined to provide a future riskassessment in the absence of engagement by Mr Warren. In an addendum from thatpsychologist in August 2017, the opinion was that Mr Warren's risk of futurereoffending would remain significant unless he engaged in structured violenceprevention programmes, but the report noted that a detailed assessment remained22 Sentencing notes, above n 1, at [50].impossible due to Mr Warren's refusal to engage. A second psychologist's reportprepared by a Department of Corrections clinical psychologist on 1 August 2017opined on the basis of static psychological tests that Mr Warren was at least at highrisk, and more likely at very high risk, of further violent offending shortly after release.Both psychologists reported that in their limited dealings with Mr Warren he had beenpolite and friendly and all reports were obviously limited by a lack of Mr Warren'sengagement with the writers.[49] Ms Kincade has recently procured a s 27 report from Ms Shelley Turner whoattributes Mr Warren's severe stance towards people in positions of authority asunderstandable given the colonial history of Aotearoa and particularly the impact onhis iwi, Ngāti Awa. All of Mr Warren's most serious offending (both present and past)has taken place when people in positions of authority have come onto a propertyoccupied by him. Mr Warren's upbringing and former pro-offending attributes wereaffected by economic, social and cultural deprivation suffered by Ngāti Awa.[50] Essentially in reliance on the mitigating circumstances detailed in the s 27report, Ms Kincade submitted that on an appeal against sentence, a 20 per centdiscount for cultural factors would be warranted which would have the effect ofreducing the proposed finite sentence to 15 years' imprisonment. Ms Kincade alsosubmitted that the Judge had concluded a sentence of preventive detention wasnecessary without adequately canvassing the alternatives including anExtended Supervision Order. Such an order would leave the decision on the need forany further controls over Mr Warren at the conclusion of a finite sentence to thoseequipped to assess it at the time. Ms Kincade was also critical of a failure to analysethe inadequate rehabilitative opportunities previously afforded to Mr Warren.[51] In responding to these prospects for a sentence appeal, Ms Mildenhall for theCrown submitted that at the time of Mr Warren's sentencing in 2017, s 27 reports wererelatively rare and, given his consistent rejection of New Zealand laws applying tohim, it would not be appropriate to now review the prospects of a successful sentenceappeal on the basis that a recently prepared s 27 report might have made a difference.The Crown also rejects criticisms of the adequacy of the Judge's analysis andjustification for a sentence of preventive detention.[52] The mandatory considerations the Court must take into account in consideringa candidate for preventive detention are those in s 87(4) of the Sentencing Act.They are as follows:87 Sentence of preventive detention(4) When considering whether to impose a sentence of preventivedetention, the court must take into account—(a) any pattern of serious offending disclosed by the offender'shistory; and(b) the seriousness of the harm to the community caused by theoffending; and(c) information indicating a tendency to commit serious offencesin future; and(d) the absence of, or failure of, efforts by the offender to addressthe cause or causes of the offending; and(e) the principle that a lengthy determinate sentence is preferableif this provides adequate protection for society.[53] On the basis of the evidence at Mr Warren's trial and the content of the reportsavailable to the Judge on sentencing, the decision that the sentence of preventivedetention was required was clearly open to the Judge. The level of violence in hisoffending had escalated and the charges could easily have included a homicide.Mr Warren was unrepentant and denied that he could be constrained by New Zealandlaw. We can see no compelling argument that the Judge's analysis was in error.[54] A constraint for report writers considering the risk of an offender committingviolent offences in the future where the candidate declines to participate is that theyare more heavily dependent on predictions based on past conduct, rather than theircurrent opinion reflecting the offender's post-conviction attitudes.[55] Since the time of the offending Mr Warren has been consistently staunch inrejecting the application of all aspects of New Zealand criminal law to his conduct.That stance severely limits the prospects of positive engagement with rehabilitativeprocesses. We are not inclined to treat Mr Warren's belated engagement on positiveterms with the writer of a s 27 report as an exceptional circumstance that would justifywithdrawal of the earlier notice of abandonment of his appeal.[56] We are accordingly satisfied that the threshold for granting leave to withdrawthe notice of abandonment is not reached in respect of either an appeal againstconviction or sentence and his application to do so is declined.[57] Postscript: When this judgment was ready for delivery on 6 May 2022,Mr Warren purported to file further materials in support of his appeal. No leave wassought to do so, and no grounds were advanced for consideration of those materials.They cannot influence the outcome.Solicitors:Crown Law Office, Wellington for Respondent