T (CA502/2018) v R [2022] NZCA 83

T (CA502/2018) v R [2022] NZCA 83 [25 March 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA502/2018[2022] NZCA 83BETWEEN T (CA502/2018)AppellantAND THE QUEENRespondentHearing: 16 February 2022 (further submissions 9 March 2022)Court: Gilbert, Katz and Edwards JJCounsel: D A Ewen for AppellantS K Barr for RespondentJudgment: 25 March 2022 at 11 amJUDGMENT OF THE COURTA The application to adduce further evidence is granted.B The appeal against sentence is allowed.C The sentence of preventive detention with a minimum period ofimprisonment of five years is set aside.D The matter is remitted to the High Court for resentencing in the light ofthe further expert evidence now available.E The appellant is remanded in custody pending resentencing. We set anominal date of 5 April 2022 in the High Court at Auckland for the case tobe called.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] The critical issue in this case is whether a lengthy finite sentence would providesufficient protection for the safety of the community given the likely imposition of anextended supervision order (ESO) upon release, rather than a sentence of preventivedetention.[2] The appellant, who we shall refer to as T,1 faced nine charges of sexual andother offending against his stepdaughter over a four-year period commencing inSeptember 2007 when she was aged between seven and 11. Having pleaded guilty tosix of these charges, T sought a sentence indication on all charges. Muir J gave asentence indication of four years and 10 months' imprisonment with a minimumperiod of imprisonment (MPI) of two years and five months.2 The possibility offurther discounts for personal mitigating factors was left open,3 but so too wasthe prospect of a sentence of preventive detention.4[3] T accepted the sentence indication and pleaded guilty to the remaining charges.[4] Following consideration of two health assessor's reports, which were notcontested, the Judge ultimately imposed a sentence of preventive detention with a MPIof five years.5 The decision not to impose a lengthy finite sentence was clearly finelybalanced — the Judge described it as "a most difficult sentencing exercise".6[5] It is common ground that T was not advised prior to sentencing that he couldchallenge the expert reports relied on by the Crown in seeking a sentence of preventivedetention or that he could obtain his own report. T claims that the further report hehas now obtained from a senior psychologist may well have tipped the balance in1 The parties agree that anonymisation is necessary to protect the identity of the complainants.2 R v [T (CA502/2018)] [2018] NZHC 745 [Sentence indication].3 At [18].4 At [9].5 R v [T (CA502/2018)] [2018] NZHC 1945 [High Court judgment].6 At [56].favour of a finite sentence. He therefore seeks a resentencing in the High Court,preferably before the same Judge.[6] Having reviewed this further expert evidence, we consider there is merit in T'sposition. We have decided that the most appropriate course is to set the sentence asideand remit the case back to the High Court to reconsider the appropriate sentence inthe light of the further expert evidence now available.The offending[7] The offending occurred at unspecified times in the period from 26 September2007 to 26 September 2011. The charges, including particulars, can be summarisedas follows:7(a) attempted sexual connection with a child (representative) (at varioustimes attempting to put his penis into the complainant's vagina);8(b) assault on a child (kicking the complainant in the backside at aplayground);9(c) six charges of doing an indecent act on a child (placing her hand on hispenis and sliding her hand up and down his penis, biting her nipple,kissing and "humping" her while [T was] clothed);10 and(d) doing an indecent act on a child (representative) (kissing complainanton multiple other occasions).11[8] The Judge set out the agreed summary of facts as follows:12[6] The victim is [T's stepdaughter]. She was born in 2000.The offending concerns multiple indecent acts that took place between26 September 2007 and 31 December 2011,13 when the victim was aged7 Sentence indication, above n 2, at [1].8 Crimes Act 1961, s 132(2).9 Section 194(a).10 Section 132(3).11 Section 132(3).12 High Court judgment, above n 2.13 The latest date referred to in the charges is 26 September 2011, not 31 December 2011.between seven and 11 years. It involved, at various times during that four yearperiod, and I summarise the position: rubbing and kissing her over her body;placing her hands on his penis and sliding her hand up and down on it; takingher clothes off and trying, unsuccessfully, to insert his penis into her vagina(more than one occasion); biting her bare nipples, and what might colloquiallybe described as "dry humping" her while he was clothed and with his victimmade to lie on top of him.[7] On the occasion of each of these alleged offences [T] thoughtthe victim's mother was out of the house. He repeatedly told the victim not totell her mother. On the occasion of the last of the offences previouslydescribed, the victim's mother entered the room and witnessed it occurring.[T] told the victim's mother that he would never do such a thing again. For thenext approximately five years in which he remained part of the victim's lifethere was no recurrence of offending. In 2017 the offending was reported andhe was arrested. He has been in custody since.[8] The final representative charge of doing an indecent act on a childrelates to kissing the victim on the lips on numerous occasions while hermother was not at home.[9] The assault charge relates to an incident when the defendant kickedthe victim in the buttocks.Victim impact statement[9] The complainant states that she suffered "minor discomfort injuries" as a resultof the attempted sexual connection incidents but did not require medical attention.She was distressed at the time and has been emotional about these incidents. She saysit has been hard for her to communicate her complaint because of whānau pressures,particularly from her mother. She has no ongoing relationship with T and she declinedto participate in a restorative justice conference as sought by him.Personal circumstancesUpbringing and early life[10] The Judge received a cultural report from Khylee Quince regarding T'spersonal and cultural background in terms of s 27 of the Sentencing Act 2002(the Act). Ms Quince has specialist expertise in this area. The following summary islargely drawn from her helpful report.[11] T, now aged 50, was the fourth of six children. His father is Ngāpuhi and hismother Tainui. T's upbringing in Māngere, Auckland was characterised by alcoholand violence — his mother was a heavy drinker and his father was violent. Extremeviolence was normalised and expected as "just a part of life". T does not recallanything positive in his upbringing. He reports having no wider familial relationshipsof any significance during his upbringing and says there was little cultural influencein his family life.[12] T says he loved school, particularly mathematics, and achieved well untilreaching year 10 when he had a difference of opinion with a teacher andthe headmaster. As a result, without telling his parents, he left school (at the age of13) and hid for several days to avoid the "inevitable hiding" he knew he would receivefrom his father. When his father discovered he had left school, he kicked him out ofthe family home, forcing him to live on the streets where his older brother was alreadyliving, largely to escape the violence in the home.[13] The next decade of T's life was marred by alcohol, drugs, glue sniffing andpetty crime. T often offended with his older brother who, by this time, had become amember of the Mongrel Mob. As a result of this, T was sent to numerous foster homesand spent time at various boys homes for youth offenders. T suffered further physicalabuse during this period.[14] Ms Quince summarises T's impoverished upbringing as follows:[T] has been exposed to a dysfunctional, violent and abusive homelife, withlittle modelling of positive and healthy relationships. He has not beenthe beneficiary of emotional, social or psychological stability, let alonephysical safety. Life was something to endure and survive. In my view [T's]situation, life circumstances and behaviours are common to many young maleMāori. He has a tenuous cultural connection to Te Ao Māori, insteadparticipating in an identity that is generically brown, urban and shaped bysocio-economic and contextual factors. His family life, educationalexperience and his entanglement with anti-social peers and ultimately, withoffending behaviours are sadly not uncommon to young men in hiscommunity.Prior sexual offending[15] T has seven convictions for prior sexual offending over a two-year period fromJune 1996 to November 1997 when he was aged between 24 and 26. This offendinghad some similarities to the present offending but was more serious. The principalcomplainant was the daughter of his then partner and was aged 10 to 11. T wassentenced in February 1998 to seven years' imprisonment for this offending — twocharges of rape, two charges of unlawful sexual connection and three charges ofindecent assault. He was sentenced at the same time on two charges of ill-treating achild, being the three-year old sister of the other complainant. This latter offendingoccurred earlier, in January 1995, and involved physical assaults and locking her in acupboard.Health assessors' reports[16] The Judge received two health assessor's reports prepared pursuant tos 88(1)(b) of the Act addressing the likelihood of W committing a further qualifyingsexual offence. Senior clinical psychologists, Dr Ian Goodwin and Ms MichelleCoutinho, each considered there was a high risk T would commit future sexualoffending.[17] In her thoughtful and thorough report prepared in July 2018, Ms Coutinhoreviewed T's personal and family background, trauma history, his struggles withalcohol and drugs, his prior offending and the treatment he had received to date.She noted that in 2003, while serving his sentence for the earlier sexual offending, Tcompleted a 42-week programme at Te Piriti Special Treatment unit. At the conclusionof this programme, T's risk of future sexual offending was assessed as moderate andwould most likely be against pre-pubescent girls who were known to him and leftunsupervised in his care.[18] Following his release from prison, T was referred to an alcohol and drugassessment, a monthly Te Piriti relapse prevention group, and a psychologist forsupport and ongoing relapse prevention. T was initially reluctant to engage withthe psychologist in the community as he did not believe further treatment wasnecessary. However, after being advised by his probation officer that he may facerecall to prison, he completed 10 treatment sessions. He also completed a 10-weekdrug and alcohol programme during this period.[19] The index offending, which commenced some four years later, demonstratesthat T was unable to apply the skills acquired in the treatment programme tosuccessfully manage his risk in high-risk situations. However, Ms Coutinho creditedT with having made some progress. She noted that the offending ceased once T'spartner became aware of it in September 2011. This was despite T remaining involvedin the complainant's life for a further five years until the offending was reported tothe police in February 2017.[20] Ms Coutinho identified a number of potential protective factors, including T'sintelligence (which should assist him to engage meaningfully with treatment), hisempathy for the complainants, his motivation for treatment and his life goals of havingfuture access to his four children (who are in the care of his sister and her husband)and living a Christian life. Ms Coutinho explained that T had gained newfoundreligious beliefs that may provide the basis for pro-social and respectful ways ofengaging with others. Ms Coutinho described this as a good foundation on which tobuild further insight and skill in managing his behaviour. However, she considered Tstill faces significant challenges in order to achieve enduring behavioural change. Thisis partly because his experiences in early life have resulted in him having a profoundmistrust of others. This factor, combined with his strong feelings of shame, mayimpede his ability to fully engage with further treatment, including for the trauma hesuffered in his early life.High Court judgment[21] The Judge commenced by considering the finite sentence that would beappropriate if preventive detention was not ordered. He adopted a starting point offive years and six months' imprisonment taking account of the aggravating features ofthe offending — planning and premeditation, vulnerability of the complainant, breachof trust, harm to the complainant, skin on skin contact, and the scale of the offending.14This indicative starting point was uplifted by 12 months to reflect T's prior sexualoffending.15 The Judge then allowed a five per cent discount (four months) forexceptional remorse, observing it would be "difficult to envisage a case of more abjectand complete contrition."16 Finally, the Judge allowed a 25 per cent discount for T's14 High Court judgment, above n 5, at [24] and [26].15 At [31].16 At [29].early guilty pleas.17 No discount was allowed for T's disadvantaged background.The indicative finite sentence was therefore four years and seven months'imprisonment.18 The Judge indicated he would have imposed a 50 per cent MPI onthis finite sentence.19[22] The Judge then turned to consider whether preventive detention should beimposed. The first two statutory preconditions for such a sentence were not in dispute— T had been convicted of a qualifying sexual offence and was of over the age of 18at the time of committing that offence.20 The only contest related to the thirdprecondition — whether T was likely to commit another qualifying sexual offence ifreleased at the expiry of the indicated sentence.21 In view of the unchallenged reportsfrom the two psychologists, the Judge was satisfied as to this.22 The Judge thendiscussed the factors set out in s 87(4) of the Act, noting that in finely balanced cases,the possibility of an ESO on release could tip the balance in favour of a finitesentence.23[23] It is clear from the Judge's thoughtful analysis that he was torn as to whetherto impose a finite sentence or a sentence of preventive detention. He ultimately optedfor preventive detention because the assessed risk T presented to the safety ofthe community was sufficiently significant and ongoing to displace the statutorypreference for a lengthy determinate sentence.24 The Judge considered such a sentencewould also provide the strongest incentive to T to engage in treatment and continue onthe path of rehabilitation and personal redemption to which he has committedhimself.2517 At [33].18 At [33].19 At [35].20 Sentencing Act 2002, s 87(2)(a) and (b).21 Section 87(2)(c).22 High Court judgment, above n 5, at [46].23 At [41]–[55].24 At [61].25 At [60].[24] The Judge summarised his reasons for imposing preventive detention inthe following way:Conclusion on preventative detention[56] I admit to having found this a most difficult sentencing exercise. [T's]unvarnished remorse, his commitment through faith and appropriatetherapeutic intervention to a reformed life and the five-year period in whichhe managed adequately to restrain his acknowledged impulses all pointtowards a finite sentence, particularly in what I have considered the almostinevitable circumstance that an ESO would be at least sought at the conclusionof the term. Section 87(4)(e) strongly reinforces the legislative preference fora lengthy determinate sentence.[57] I acknowledge the Court of Appeal's observation in Antonievic v Rthat a sentence of preventative detention can be appropriate to require anoffender to engage fully in treatment and rehabilitation given that, inthe context of a finite sentence, an offender can achieve release without suchparticipation whereas if sentenced to preventative detention an offender musttake responsibility for his or her own rehabilitation and establish tothe satisfaction of the Parole Board that it has been successfully completed.However, such comments seem to be more particularly directed at offenderswho, unlike [T], resist acknowledgment of their psychological problems.[58] On the other hand, however, a highly respected psychiatrist(Dr Goodwin) and a senior clinical psychologist (Ms Coutinho) both considerthat he has a high risk of future sexual recidivism. Their reports are thoroughand fairly identify those considerations which might weigh against anindeterminate sentence, and the conclusions they express are consistent withthose of the PAC report writer. Although these combined assessments offuture risk are not binding on this Court, the views of Dr Goodwin andMs Coutinho, in particular, must be regarded as highly persuasive, both inthe context of my being satisfied that the statutory precondition in s 87(2)(c)is met and, having particular regard to s 87(4)(c), the ultimate discretionaryjudgment I must make.[59] I have to take into account also that [T] was similarly remorseful atthe time of his earlier offending, and has been the recipient of extensiveinterventions and has completed the Te Piriti programme, which currentlyrepresents New Zealand's "gold standard" for the rehabilitation of sexoffenders. And yet he has offended again shortly after release from prison.This indicates to me that despite what I regard as a genuine commitment to tryto address his problems and an element of disgust that he finds himself beforethe Courts again for child sexual offending, he still has much work to do.And although I recognise, as does Ms Coutinho, that his religious epiphanymay suggest he is ready to engage with treatment in a meaningful way, so tooit could be seen as an answer in itself when the expert evidence is that it cannotbe a substitute for the work needed to address adequately his underlyingbehaviour. I must also take into account that in 1998 [T] says that heexperienced a similar spiritual reawakening but he was unable to sustain hisfaith at that time.[60] I consider, as I have previously indicated, that there are seeds ofoptimism in [T's] position but the present assessment of his future risk issufficiently adverse that a sentence of preventative detention is in my viewappropriate, leaving the Parole Board to assess his progress over time inbecoming the man which, given his intelligence and capacity for meaningfulself-evaluation, I have no doubt he always had the potential to be. I alsoconsider such sentence provides the strongest incentives to make good on hiscommitment to participate in all interventions which may be available and tocontinue on the road of rehabilitation and personal redemption to which hehas committed himself.[61] In my view [T] represents a sufficiently significant and ongoingrisk to the safety of members of the community that the mandated preferencefor a lengthy determinate sentence does not ultimately govern the outcome.(Footnotes omitted.)Application to adduce further evidence[25] T applies to adduce further evidence in support of his appeal, being two reportsfrom David Riley, a senior psychologist who has had over 40 years of experienceworking as a psychologist with the Department of Corrections, including 10 years asdirector of the Department's psychological services. Mr Riley assesses T's risk ofreoffending to be materially lower than the other two psychologists and he explainswhy he is more optimistic about T's prospects for successful treatment andrehabilitation. He also considers T's quite specific risk profile — engaging in sexualbehaviour with the young female children of his partner — is relatively predictableand can be managed successfully by appropriate ESO conditions.[26] Mr Ewen, for T, argues that, if Mr Riley's reports had been available tothe Judge, this could well have tipped the balance in favour of a finite sentence ratherthan the sentence of preventive detention. Mr Barr, for the Crown, opposesthe admission of this evidence, contending that Mr Riley's opinions do not differmaterially from the other two psychologists and his evidence is therefore not cogent.[27] We would not normally admit this type of evidence because the question onappeal is whether the Judge's decision was correct based on the information availableat the time of sentencing. An appeal is not generally to be regarded as an opportunityto review the appropriateness of the sentence in the light of further evidence that couldhave been offered at sentencing or subsequent developments.[28] However, this case does not fall into that category. Although Mr Riley'sevidence is clearly not fresh (it could have been obtained at the time), we put thisfactor to one side because it is common ground T was not told prior to sentencing thathe could challenge the expert reports relied on by the Crown and seek his own report.This is an important consideration. A sentence of preventive detention is the mostrestrictive in the sentencing hierarchy. The question whether to impose it is of greatsignificance, not only for the offender, but also for the complainant and the widercommunity. The sentencing judge should therefore receive all such assistance asreasonably can be given in making the decision. Here, the decision appears to havebeen delicately poised. Had Mr Riley's evidence been obtained prior to sentencing,we have no doubt it would have been carefully considered by the Judge.[29] Mr Riley's evidence is plainly credible. The key issue is cogency.26[30] A sentencing decision whether to impose preventive detention ultimately turnson an assessment of risk. If there is a significant and ongoing risk to the safety ofthe community, the question is whether the risk can be adequately managed by alengthy finite sentence and the likelihood of an ESO.27 If this less restrictive outcomeis not adequate to protect the safety of the community, a sentence of preventivedetention may be imposed. Where the statutorily preferred, less restrictive outcomeof a lengthy determinate sentence is not considered adequate or appropriate,the reasons for this should be based on evidence and fully explained in the judgment.[31] Although made in the context of the Government's decision to introducepost-sentence detention under the Public Safety (Public Protection Orders) Act 2014,we consider the observations of Gavaghan, Snelling and McMillan are equallypertinent here:28[C]an post-sentence detention really be said to be the least restrictive measurenecessary to protect public safety?26 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [117]–[120] and [150]–[151].27 J v R [2019] NZCA 581 at [58].28 C Gavaghan, J Snelling and J McMillan Better and Better and Better? A Legal and EthicalAnalysis of Preventive Detention in New Zealand (Report for the New Zealand Law Foundation,University of Otago, 7 November 2014) at 86–87.Specifically, what of the possibility that the existing mechanism of ExtendedSupervision Orders could be used as an alternative to detention?The Regulatory Impact Statement makes the claim that:A strengthened form of the most intensive form of an extendedsupervision order would not reduce the risk of violent and adult sexoffenders re-offending because they could not be safely managedunder the order.If, the claim is an empirical one, that the risk of re-offending not onlycannot be eliminated, but cannot even be reduced by the implementation of anESO, then it is the sort of claim that should be informed by evidence.Have ESOs proved wholly ineffective in those cases where they have beenimposed? Do those cases differ so greatly from those in current contemplationas to render ESOs ineffective? Legislators certainly enjoy a substantial marginof appreciation in selecting the means towards their purpose, but this does notafford infinite discretion. Where a significantly more restrictive option isbeing selected, it should be incumbent upon those seeking to introduce it todemonstrate why the less restrictive option is insufficient. Mere assertion isinsufficient.(Footnotes omitted. Emphasis added.)[32] We intend no criticism in observing that neither Dr Goodwin nor Ms Coutinhoaddressed in their reports whether the particular risk T poses could be adequatelymanaged by a lengthy determinate sentence and appropriate ESO conditions onrelease, assuming the risk remains at that time. Although the Judge was cognisant ofthe likelihood of an ESO being imposed, he did not have the benefit of any evidenceaddressing this important issue. Nor, it appears, did he receive any submissions onbehalf of T contending that such an outcome would be sufficient to protectthe community from the risk he poses and would be the least restrictive outcomeappropriate in all the circumstances. Mr Riley's evidence addresses these issuesdirectly and they lie at the heart of the sentencing decision.[33] Mr Riley offers an informed opinion as to why T's earlier treatment throughthe Te Piriti programme he completed in 2003 was not successful:[T] exhibited a wide raft of emotional, behavioural, attitudinal, and functionaldifficulties on entering into the programme, all of which were to a greater orlesser degree relevant to his interpersonal, and particularly his sexual,functioning. While the programme itself would not have ignored these issues,the level of emphasis and attention within the group format, albeit augmentedwith individual psychotherapy at times, would have been insufficient to movehim from a position of a non-trusting, relatively poorly-skilled socially,substance-dependent individual, beset with emotions and impulses he founddifficult to control, lacking the skills necessary to engage constructively in anintimate relationship, beset at times with feelings of hopelessness and despair,carrying a deep burden of shame about both his sexual offending and his widersense of failure in life, and a set of entrenched anti-social beliefs supported byhis peer group, were clearly beyond the capacity of the programme at thattime.[34] Mr Riley adds:[The disclosure process in relation to sexual offending] is one of the mostchallenging phases of the treatment programme, and it is particularlyimportant, as it forms a base on which to build the other important aspects ofthe therapeutic process. Managing resistance and overcoming responsivitybarriers is a process which demands a high level of clinical expertise [35] Mr Riley says this expertise was lacking at the time T undertookthe programme in 2003: at the time of [T's] attendance at Te Piriti, Corrections had been unable toattract a person to fill the position of Principal Psychologist. That role wasfilled by a manager with a probation and rehabilitation worker background.At the same time, there was also a shortage of psychologists providing directtherapy services at the facility, and the treatment unit was obliged to contractout specialist clinical supervision services to external providers, to deal withthe in-house shortage of specialist skills.[36] The relevance of this evidence is not to level criticism at anyone but to assesswhether there is a proper basis for Mr Riley's optimism that T's participation in furthertreatment is likely to materially lower his risk. Understandably, the Judge wasparticularly concerned that the prior treatment through the Te Piriti programme, whichhe referred to as New Zealand's "gold standard", did not stop T from reoffendingshortly after he was released from prison.29 There is no disagreement amongthe psychologists that T has much work to do (as the Judge said), but Mr Riley'sevidence provides a basis for optimism that further skilled treatment can be successful.[37] Unlike those offenders who are typically sentenced to preventive detention, Tdoes not deny or minimise his offending, he recognises he has psychological problemsthat require treatment, and he is committed to engaging in such treatment.30 He does29 High Court judgment, above n 5, at [59].30 See also J v R, above n 27, at [66]; and Parker v R [2020] NZCA 424 at [53].not disrespect authority and is fully cooperative.31 It does not appear that a sentenceof preventive detention is required to incentivise change.32[38] Mr Riley's evidence is also important on the issue of whether T's risk can bemanaged through ESO conditions if it cannot be adequately treated prior to release.Mr Riley considers that, given the specific and predictable nature of the risk, closemonitoring and oversight should provide a "good level of assurance" for publicprotection. In particular, he considers "it would certainly be possible[by the imposition of an ESO] to prevent him from once again becoming involvedwith an intimate partner with young female children, a significant concern giventhe very specific nature of his offending". Given Mr Riley's expertise and his 40 years'experience with Corrections, his opinions on these matters deserve respect.[39] We conclude that Mr Riley's evidence is cogent, particularly given the finelybalanced decision. We are satisfied that the application to adduce Mr Riley's reportsin support of the appeal should be granted.[40] Given our conclusion below as to the appropriate disposition of this appeal, itis not necessary for us to discuss Mr Riley's reports in further detail or Ms Coutinho'sresponse to them. These will be matters for the High Court to consider more fully onresentencing.Disposition[41] Counsel advise that as T is now reaching his parole eligibility date,33 he is apriority for treatment. We are told he is waitlisted to attend the Te Piriti programmetentatively scheduled to commence in July 2022 subject to COVID issues. T wishesto participate in this programme, and it is clearly desirable that he does so.[42] Mr Ewen seeks an order remitting the case back to the High Court forresentencing, preferably before the same Judge. Mr Barr, for the Crown, does notoppose this course if the appeal is allowed. We consider there are distinct advantages31 See also Kumar v R [2015] NZCA 460 at [106].32 See also Morris v R [2021] NZCA 491 at [42].33 1 August 2022.to this. To the extent it becomes necessary to hear from the expert witnesses, thisshould occur in the High Court. Apart from anything else, there may be difficultiesand consequent delays in reconvening the same panel to undertake this exercise in thisCourt. A further and important consideration is that if the resentencing were to beundertaken in this Court, appeal rights would be truncated. Any appeal would thenonly be with leave of the Supreme Court.Result[43] The application to adduce further evidence is granted.[44] The appeal against sentence is allowed.[45] The sentence of preventive detention with a minimum period of imprisonmentof five years is set aside.[46] The matter is remitted to the High Court for resentencing in the light ofthe further expert evidence now available.[47] The appellant is remanded in custody pending resentencing. We set a nominaldate of 5 April 2022 in the High Court at Auckland for the case to be called.Solicitors:Crown Law Office, Wellington for Respondent