R v HAEREWA [2020] NZCA 198

R v HAEREWA [2020] NZCA 198 [29 May 2020]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA606/2019[2020] NZCA 198BETWEEN THE QUEENAppellantAND BENNY HAEREWARespondentHearing: 13 May 2020Court: Collins, Duffy and Edwards JJCounsel: Z R Johnston and A D H Colley for AppellantW C Pyke for RespondentJudgment: 29 May 2020 at 11.00 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of 7 years and 7 months' imprisonment for sexual violationby unlawful sexual connection is quashed and substituted with a sentenceof preventive detention.C The minimum period of imprisonment of 6 years remains in place.D All other sentences imposed by the High Court remain in place and are tobe served concurrently.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Two general questions are raised by the Solicitor-General's appeal againstthe decision of Powell J not to impose a sentence of preventive detention uponMr Haerewa:1(a) Did the High Court Judge err when he concluded the statutoryrequirements to impose a sentence of preventive detention uponMr Haerewa were not satisfied? If so,(b) Should a sentence of preventive detention be imposed?[2] The question posed in [1(a)] arises from the requirements of s 87(2)(c) of theSentencing Act 2002 (the Act), which provides that a sentence of preventive detentioncan only be considered, where, amongst other criteria, the sentencing judge is satisfiedthe defendant "is likely to commit another qualifying sexual or violent offence" uponthe expiration of a finite term of imprisonment. At issue is whether Mr Haerewa waslikely to commit a violent offence being, any offence specified in s 87(5)(b) of theAct.2[3] In the High Court, Powell J concluded he had "really no information" from themedical specialists who had assessed Mr Haerewa which enabled the Judge to besatisfied that the qualifying criterion for preventive detention in s 87(2)(c) of the Actwas satisfied.3 The Judge therefore decided he could not impose a sentence ofpreventive detention.1 R v Haerewa [2019] NZHC 2663.2 The specified violence offences include manslaughter, attempt to murder, wounding with intent,injuring with intent, aggravated wounding or injury, abduction for the purposes of sexualconnection, kidnapping, robbery, aggravated robbery, and assault with intent to rob.3 R v Haerewa, above n 1, at [44]. That is, that it is likely that Mr Haerewa would commit one ofthe qualifying violent offences.[4] Powell J sentenced Mr Haerewa to a finite term of 9 years' imprisonment, witha minimum period of imprisonment (MPI) of 6 years.[5] On appeal, the Solicitor-General contends the High Court Judge misconstruedthe evidence that was before him concerning the requirements of s 87(2)(c) of the Actand that Mr Haerewa should be sentenced to preventive detention.Background[6] In May 2019, Mr Haerewa pleaded guilty to 15 charges of serious violence andsexual offending. The victims were Mr Haerewa's former partner, F, and two of herchildren, N and T.[7] Mr Haerewa and F knew each other when they were younger. They becamereacquainted when Mr Haerewa was released following a sentence of 12 years'imprisonment for manslaughter. The victim in relation to that offence was thefour-year-old son of a previous partner of Mr Haerewa.[8] Mr Haerewa and F began living together in 2014. At the time he was 36 yearsold. Initially, four of F's children lived with her and Mr Haerewa. The family unitexpanded when F's two eldest children came to live with them. In addition, F becamepregnant and gave birth to a daughter in 2015.[9] The relationship between Mr Haerewa and F began to deteriorate from aboutthe time she became pregnant through to 3 December 2017. During that period,Mr Haerewa repeatedly inflicted acts of violence on F.[10] The summary of facts Mr Haerewa accepted when he entered his guilty pleasrecorded several of the instances of violence that Mr Haerewa perpetrated against F:[He] frequently punched [F] in the head and face and she commonly had blackeyes and bruising as a result of the assaults. On one occasion, he punched herin the face in the car as they were driving to a child's basketball game. He didthis because he did not like her speaking to other men and she had beencommunicating with the coach in relation to the basketball game[He] also frequently used objects such as a tomahawk to threaten [F]. On oneoccasion, [F] was lying in bed and [Mr Haerewa] started talking about how hewas a child killer. He then slammed the tomahawk down hard right next to[her] on the bed, approximately 20cm away from herOn one occasion, [he] became angry with [F] [and] began to hit her witha wooden broom stick [11] The principal offending took place on 2 and 3 December 2017. The summaryof facts records that on 2 December 2017 Mr Haerewa made F stand outside theirhome with her top pulled up to reveal her abdomen and that:He was yelling out to anyone walking past offering to sell her for twentydollars. He then had her [sit] on a chair outside the door but wouldn't let herinside. He brought her out a pot of water and some old bread and told her shehad to be treated like a dog so placed them on the ground for her to eat anddrink.He [then] wrapped a cord around her neck pulling it tight for a time. Hetold her she was "going to die today".[F] said to [Mr Haerewa] she would do anything if he didn't kill her.[Mr Haerewa] told [F], "you know what to do" and told her this was all hermouth was good for. He then [exposed] his penis. [F], fearing for her lifegave [Mr Haerewa] oral sex.[12] The next day Mr Haerewa again engaged in acts of violence against F.The summary of facts records Mr Haerewa punched F on the right side of her jaw,grabbed her by her hair and dragged her inside their home, slammed her head on thefloor and punched her on the arm. Mr Haerewa then broke a mug and threatened Fwith a splintered portion of the mug. He then picked up a frying pan and tried to strikeher. F was able to escape from the home.[13] In addition to the offending against F, Mr Haerewa frequently punched andkicked N, who was aged 14. He also often struck T on the head including, on the dayof T's ninth birthday when he threw a can of soft drink at T, hitting him on the head.[14] Mr Haerewa also damaged the house that he and F rented from HousingNew Zealand. He used a tomahawk to create holes in the walls of that home, andcarved and wrote messages on the walls about him being a "child killer".[15] The charges to which Mr Haerewa pleaded guilty comprised:(a) sexual violation by unlawful sexual connection;(b) five charges of assault with intent to injure;(c) threatening to kill;(d) three charges of assault with a weapon;(e) two charges of male assaults female;(f) assault on a child;(g) common assault; and(h) intentional damage.[16] Mr Haerewa's history of criminal offending includes two charges that arosefrom events in 1996 and 1999. In the first of those cases, Mr Haerewa was sentencedto 9 months' imprisonment for intentionally injuring the very young child of his thenpartner. Following his release from prison, Mr Haerewa continued to live with hispartner and her child but, in 1999, Mr Haerewa seriously assaulted his partner's son,the four year old whom we referred to at [7]. The injuries were so severe that theyoung boy died. This led to Mr Haerewa being sentenced to 12 years' imprisonmentfor manslaughter.4 He served the entire term of that sentence.Legislative regime[17] A sentence of preventive detention may be imposed in order to protect thecommunity against persons who pose a significant and ongoing risk to the safety ofmembers of society.54 R v Haerewa HC Napier S5/99, 18 August 1999.5 Sentencing Act 2002, s 87(1).[18] There are three preconditions set out in s 87(2) of the Act that must be satisfiedbefore a sentence of preventive detention can be considered:(a) the offender must have been convicted of a qualifying sexual or violentoffence; and(b) the offender must be 18 years of age or over at the time of committingthe offence; and(c) the court must be satisfied that the offender is likely to commit anotherqualifying sexual or violent offence if he or she is released at theexpiration of any sentence of imprisonment.[19] If the court is satisfied of these threshold criteria, then, it may decide whetheror not to impose a sentence of preventive detention. In doing so, the court must takeinto account:6(a) any pattern of serious offending disclosed by the offender's history;and(b) the seriousness of the harm to the community caused by the offending;and(c) information indicating a tendency to commit serious offences in future;and(d) the absence or failure of efforts by the offender to address the cause orcauses of the offending; and(e) the principle that a lengthy determinate sentence is preferable if thisprovides adequate protection for society.6 Section 87(4).Reports from health professionals[20] Reports were obtained from two psychiatrists and a psychologist to assistPowell J in determining whether or not Mr Haerewa should be sentenced to preventivedetention.Dr Pillai[21] Dr Pillai is a consultant psychiatrist. The key portions of his report concernedthe likelihood of Mr Haerewa committing a further qualifying offence and whether thecriteria in s 87(4) of the Act were satisfied.[22] In relation to the s 87(2) threshold criteria, Dr Pillai concluded that althoughMr Haerewa had engaged in serious sexual offending, his pattern of offending broughtinto focus Mr Haerewa's acts of violence in domestic settings. After examining riskassessment criteria, Dr Pillai explained that Mr Haerewa's historical risk factorsindicated "a high level of risk for future violent behaviour". Dr Pillai said:For Mr Haerewa, there is clear potential for violence in the context of futureintimate relationships. Likely victims would include both his partner and anychildren within the house. The severity of violence has been at the mostextreme level in the past with loss of life and sexual assault. This has led tovery serious psychological and physical harm. Were Mr Haerewa to engagein a further intimate relationship violence would return within a matter ofmonths heralded by deterioration in the quality of the relationship possiblyincluding mistrust and jealousy. The frequency of violence both in terms ofthe current and previous convictions has been high with multiple attacks onthe victims over extended periods of time. On the basis of recent and moreremote past behaviour the likelihood of recurrent violence within an intimaterelationship is high.[23] When considering the criteria in s 87(4) of the Act, Dr Pillai:(a) said Mr Haerewa had "a clear pattern of extreme domestic violence";(b) refrained from commenting on the seriousness of harm to thecommunity caused by Mr Haerewa's offending;(c) reasoned Mr Haerewa had a "high risk of future violence";(d) observed that the violence prevention course Mr Haerewa hadpreviously completed did not lead to a reduction in violence; and(e) suggested Mr Haerewa's "risk of violence may be reduced at the endof a long period of incarceration".Dr Jacques[24] Dr Jacques is also a consultant forensic psychiatrist, who conducted a riskassessment of Mr Haerewa in order to evaluate the likelihood of him "committing afurther qualifying violent offence". Dr Jacques explained the assessment tools he usedand summarised Mr Haerewa's risk factors, which included his extensive history ofprevious violence.[25] Based upon his assessment, Dr Jacques concluded Mr Haerewa was: at high risk of similar serious and life threatening violent reoffending if heis not engaged and does not benefit from psychological interventions to reducehis risk of recidivism. Potential victims in the future are of course likely to befuture partners and their children and potential violence will almost certainlyremain at serious and life threatening levels.(Emphasis in original.)Ms Isaacson[26] Ms Isaacson is a clinical psychologist, who conducted an assessment ofMr Haerewa at the request of his counsel in the High Court. Ms Isaacson used anumber of assessment tools, which assisted her in reaching the following conclusions: Mr Haerewa currently presents with a high risk of violent reoffendingagainst an intimate partner and children whom he [perceives] as disrespectfuland disobedient Future violence could include verbal aggression,intimidation and threats, and physical assault that could include strangulation,kicking, punching and using items at hand as weapons to inflict harm.Mr Haerewa's high likelihood of reoffending is most likely within situationswhere he experiences righteous anger, increased stress and frustration, and hisability to self-soothe and effectively manage his anger arousal is compromised(e.g., through intoxication, sleep deprivation, rumination, etc.).[27] When considering the criteria in s 87(4) of the Act, Ms Isaacson said:(a) Mr Haerewa's most recent offending demonstrated his capacity forserious offending but, nevertheless, "a pervasive or persistent patternof serious offending [was] not evident".(b) Mr Haerewa's serious offending causes harm in domestic contexts "anddid not generalise to harm of the wider community".(c) If untreated "Mr Haerewa's tendency to commit serious offences in thefuture would likely be restricted to a cohabiting intimate relationshipand not generalise to wider community contexts".(d) Mr Haerewa was likely to benefit from family harm focused treatment.(e) "[A] lengthy prison sentence may provide adequate protection to thecommunity, particularly if relevant treatment is provided forMr Haerewa".Reports summarised[28] The reports prepared by the health assessors explain:(a) "Mr Haerewa was raised in an environment where violence, criminalbehaviour, gang affiliation, domestic violence, harsh physicalpunishment and antisocial attitudes were normalised".(b) Mr Haerewa has limited formal education and a poor employmentrecord.(c) He lacks empathy and mistrusts others.(d) Mr Haerewa has a number of antisocial traits.(e) His personal relationships have been dysfunctional.(f) Mr Haerewa lacks the ability to cope with stress in domesticrelationships.[29] The reports also revealed Mr Haerewa had undertaken a number ofprogrammes in prison that were aimed at addressing his tendencies towards violence:(a) Between November 2005 and June 2006, Mr Haerewa engaged in a28-week specialist offence focused group treatment programme in theviolence prevention unit.(b) In 2007, he engaged in individual psychological treatment aimed atviolence prevention.(c) In March 2010 Mr Haerewa engaged in further psychological treatmentsessions that aimed to assist him to develop insight into relapseprevention.(d) Between November 2010 and January 2012, he engaged in25 psychological treatment sessions to strengthen his relapseprevention plan to mitigate harm to a child.Mr Haerewa also completed drug and alcohol programmes and rehabilitationprogrammes prior to his release from prison.Pre-sentence report[30] The pre-sentence report recorded Mr Haerewa breached his release conditionssoon after leaving prison in 2011. This led to the imposition of 6 months' intensivesupervision. The pre-sentence report writer explained that the summary of facts wasread to Mr Haerewa and that while he accepted some of the details in the summary, heattempted to minimise a lot of the contents of the summary and blamed his victims forhis offending.[31] The pre-sentence report also said that there was:(a) "a real potential for Mr Haerewa to repeat his violent mode ofoffending";(b) "Mr Haerewa would possibly present as a real threat to those close tohim, if provoked in any way"; and(c) "It would appear Mr Haerewa resorts to extreme violence as a meansof coping with any perceived stressful situation".High Court sentencing decision[32] After setting out the factual background and the purposes and principlesrelevant to Mr Haerewa's sentence, Powell J:(a) adopted a provisional starting point of 6½ years for the lead offence ofsexual violation by unlawful sexual connection;(b) increased that provisional starting point by 3 years to reflect the violentoffending against F;(c) added a further 6 months' imprisonment to reflect the intentionaldamage charge; and(d) added a further 2 years' imprisonment to reflect the violent offendingagainst N and T.[33] Powell J then:(a) applied an uplift of 6 months' imprisonment to reflect Mr Haerewa'sprevious offending that we have summarised at [16].(b) deducted five per cent to reflect difficulties in Mr Haerewa'supbringing, which had "clearly affected [his] neurodevelopmentalconnections and ability to control [his] behaviour, particularly in afamily environment";7 and(c) deducted a further 20 per cent to give credit for Mr Haerewa's guiltypleas, which were entered three weeks before his trial was scheduledto commence.This produced an end sentence of 7 years and 7 months' imprisonment for the leadoffence. Powell J then added 1 year and 5 months' imprisonment, to be servedcumulatively for one of the charges of assault with a weapon against T. The sentencesfor all other offences were to be concurrent.[34] This produced a finite sentence of 9 years' imprisonment. The High CourtJudge then considered whether an MPI was required. After applying the criteria ins 86(2) of the Act, Powell J set an MPI of 6 years.[35] Before us it was accepted by both parties that the approaches taken by Powell Jthat we have summarised at [32]–[34] and the conclusions he reached in this part ofhis decision were appropriate.[36] As we have foreshadowed, the issue on appeal concerns the High CourtJudge's approach to the criterion in s 87(2)(c) of the Act. Powell J said he was:8 required to be satisfied that it is likely that [Mr Haerewa] will not justoffend, or violently offend, or even commit serious violence offences, but that[he] will commit one of the qualifying violent offences It is on that pointthat there is really no information given by the specialists. Their overall focuswas on whether preventive detention should be imposed, not on the qualifyingthreshold, and while Dr Jacques did refer to qualifying violent offences he wasnot in any way specific about that and therefore his comments are of limitedassistance to the Court.[37] It is apparent from the transcript of the sentencing hearing that Powell Jforeshadowed his concern that the criterion in s 87(2)(c) had not been established.When counsel for the Crown realised this, he sought an adjournment to enable the7 R v Harewa, above n 1, at [29].8 At [44].medical experts to specifically address the Judge's concern. That application was,however, declined. Powell J said:9It is a principle of sentencing that the Crown must be ready to proceed on theday of sentencing, but more fundamentally this is a question for me as theJudge, rather than a question for the specialists.[38] The Judge went on to explain that he was unable to be satisfied thatMr Haerewa was likely to commit a qualifying violent offence and that, as s 87 of theAct did not apply, the sentence of preventive detention was unavailable.10Summary of submissions on appeal[39] Ms Johnston, senior counsel for the Solicitor-General, submitted that there wasample evidence before the High Court Judge that Mr Haerewa was at a high risk ofcommitting serious violent offences upon release and that a clear inference wasavailable that future offending by Mr Haerewa would include a qualifying violentoffence. It was contended on behalf of the Solicitor-General that Powell J fell intoerror by assuming he could not be satisfied that the criteria in s 87(2)(c) of the Act wasestablished without the medical experts specifying the exact offences that Mr Haerewamight commit.[40] Ms Johnston urged us to conclude that the threshold set by s 87(2)(c) of theAct had been satisfied and that this was a case that mandated the imposition of asentence of preventive detention. In relation to the criteria in s 87(4) of the Act,Ms Johnston submitted:(a) Mr Haerewa's conduct demonstrated an overwhelming pattern ofdomestic violence towards both his partners and their children;(b) the seriousness of the harm caused by Mr Haerewa's offending wasself-evident;9 At [45].10 At [49].(c) Mr Haerewa had a clear tendency to commit serious offences in thefuture; and(d) notwithstanding his previous offending, Mr Haerewa had beenundeterred with treatment and counselling on this occasion; and(e) this was a case that required the imposition of a sentence of preventivedetention in order to protect society.[41] The MPI imposed in the High Court was said by Ms Johnston to be appropriateif a sentence of preventive detention were imposed by this Court.[42] Mr Pyke, counsel for Mr Haerewa, submitted that it is apparent from a carefulreading of the sentencing decision, and the transcript of the hearing in the High Court,that Powell J fully appreciated and properly applied the criterion prescribed in s 87 ofthe Act.[43] Mr Pyke contended that even if an error was found and the threshold forpreventive detention met, this Court should exercise its discretion to not impose asentence of preventive detention. He argued that Mr Haerewa's pattern of offendingagainst children is decreasing in seriousness and severity and that there is noestablished pattern of sexual offending.Governing principles[44] Both counsel submitted this appeal is governed by the principles articulated bythe Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.11 This Court hastaken "an expressly evaluative approach" to appeals that engage s 87(2)(c) of theAct.12 Thus:(a) The Solicitor-General must establish an error in the High Courtdecision.11 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.12 Kumar v R [2015] NZCA 460 at [82].(b) An error will be established if we are satisfied Powell J misunderstoodand/or misapplied the evidence relevant to the threshold in s 87(2)(c)of the Act.(c) If we are so satisfied we should reach our own conclusion as to whetheror not a sentence of preventive detention should be imposed.AnalysisSection 87(2)(c) threshold[45] We emphasise two preliminary points:(a) Under s 87(2)(c) of the Act, before a Judge can consider imposing asentence of preventive detention, they must be satisfied that adefendant is likely to commit another qualifying sexual or violentoffence upon the completion of a finite prison sentence. An evaluativeassessment is required by the Judge when determining if the thresholdrequirements of s 87(2)(c) are satisfied. The Judge's decision may beinformed by a range of information, including the reports prepared byat least two health assessors under s 88 of the Act and all other relevantevidence.(b) Health assessors can provide helpful assistance to the Court byproviding expert evidence on the likelihood of an offender committingfurther qualifying offences upon the completion of a finite sentence. Itis not desirable, however, for health assessors to try to predict preciselywhat offences an offender is likely to commit upon completing a finitesentence. That task would require a health professional to understandthe details of the offences listed in s 87(5)(b) of the Act. We think thelimits of a health professional's expertise enable them to provideguidance on the likelihood of a defendant committing a sexual orviolent offence, the likely seriousness of such offending and thecircumstances in which it is likely to occur. Health assessors who gofurther and try to predict precisely what offence a defendant is likely tocommit risk trespassing beyond their domain.[46] Unlike Powell J, we are satisfied the health professionals in this case providedhelpful guidance on the likelihood of Mr Haerewa committing a qualifying violentoffence if he were to complete a finite sentence for his most recent offending.[47] As we have previously noted:(a) Dr Pillai was satisfied "there is clear potential" for Mr Haerewa toengage in "violence in the context of future intimate relationships".Dr Pillai observed that Mr Haerewa's past violence has "been at themost extreme level with loss of life ". Dr Pillai said the"likelihood of recurrent violence within an intimate relationship ishighly likely".(b) Dr Jacques was of the view that there is a high likelihood ofMr Haerewa engaging in serious violence. He said that such futureviolence was likely to be "at serious and life threatening levels".(c) Ms Isaacson also agreed Mr Haerewa posed a high risk of violentreoffending against a partner and children. She went so far as tosuggest Mr Haerewa could engage in acts of strangulation, kicking,punching and using available items as weapons to inflict harm.[48] We therefore agree with the Solicitor-General's submission that Powell Jmisunderstood and therefore failed to properly assess the medical assessor's evidenceconcerning the s 87(2)(c) threshold. The reports from the medical assessors laid a firmfoundation for Powell J to conclude Mr Haerewa was likely to commit a qualifyingviolent offence upon completing a finite term of imprisonment.[49] Having reached this conclusion, we are now required to decide if we share thehealth assessors' concerns. If so, then we need to decide if future likely offending byMr Haerewa would:(a) include one of the qualifying offences specified in s 87(5)(b) ofthe Act; and(b) whether such offending is likely to occur upon the completion of afinite sentence.[50] We agree with the health assessors that there is a likelihood Mr Haerewa willcommit another serious offence. The factors documented in the reports that supportthis conclusion include Mr Haerewa's:(a) history of serious violent offending;(b) inability to manage his emotions in a domestic environment;(c) history of anti-social attitudes;(d) inability to cope with domestic stress;(e) lack of personal insight;(f) propensity to engage in acts of extreme violence when those he liveswith are perceived to have undermined his authority; and(g) failure to respond positively to earlier anti-violence therapy andcounselling.[51] We also conclude that such offending is likely to be an offence specified ins 87(5)(b) of the Act. Qualifying violent offences include wounding, grievous bodilyharm and injuring with intent to cause grievous bodily harm. We agree with theSolicitor-General that future violent offences by Mr Haerewa against a partner or childare very likely to include these types of offences, if not even more serious violentoffences. This assessment is based on the history of Mr Haerewa's violent offendingand his characteristics and shortcomings that we have summarised at [50].[52] We are also satisfied that it is very likely Mr Haerewa will offend in the waywe have suggested upon being released at the completion of a finite sentence ofimprisonment. In making this assessment we provisionally adopt Powell J's reasonsfor reaching a finite sentence of 9 years' imprisonment. We have therefore approachedour task on the basis that we need to assess the probability of Mr Haerewa committinga qualifying violent offence after the completion of a sentence of 9 years'imprisonment.[53] We acknowledge the difficulties inherent in trying to make predictions aboutoffending many years in the future. We can only do so after assessing Mr Haerewa'shistory of serious violent offending, his poor response to prior treatment and his knowncharacteristics. Unfortunately, we can see little basis for an optimistic view aboutMr Haerewa's prospects. In our assessment, even after completing a lengthy finitesentence of imprisonment, we believe there is a very real likelihood Mr Haerewa willcommit another qualifying violent offence against a partner or child.Should preventive detention be imposed?[54] The answer to the second question posed in [1(b)] requires us to carefully applythe criteria in s 87(4) of the Act to Mr Haerewa's circumstances.Is there any pattern of serious offending disclosed by Mr Haerewa's history?[55] With the exception of the time he has spent in prison Mr Haerewa has, since1996, demonstrated a history of serious offending against others with whom he haslived. In particular, Mr Haerewa's pattern of disturbing attacks upon his then partner'syoung child in 1996 and 1999 recommenced not long after his release from prisonwhen he started living with F and her children.[56] There is a suggestion in the High Court sentencing decision that Mr Haerewa'soffending did not demonstrate "a steady escalation, nor indeed some sort of patternwhich shows [Mr Haerewa] alternating between lower level offending and thenbuilding up to serious offending ".13 We make the following three points:13 R v Haerewa, above n 1, at [47].(a) The transitive verb "pattern" in s 87(4)(a) of the Act refers to theregularity with which serious offending occurs when assessed againsta defendant's opportunity to offend. It does not require an escalationof seriousness of offending.(b) Although the consequences of Mr Haerewa's offending against F, Nand T did not have the disastrous consequences of his 1999 offending,his most recent offending was nevertheless, by any objective standard,serious. Mr Haerewa's strangulation of F while telling her she wasgoing to die and his use of readily available objects as weapons whenattacking F, N and T portrays a man with a very low level of self-controlwho regularly resorts to acts of serious violence against persons withwhom he is living.(c) On this occasion, Mr Haerewa was to be sentenced for a qualifyingsexual offence as well as violent offences. The fact none of theoffences for which Mr Haerewa was to be sentenced were qualifyingviolent offences does not detract from our assessment. The qualifyingsexual offence was in itself an act of violence that lends weight to ourconcern Mr Haerewa is likely to commit a qualifying violent offencein a domestic setting if he is released upon the completion of a finitesentence of imprisonment.[57] Mr Haerewa's offending against his victims has occurred on a regular basisduring the periods he has been out of prison and his offending has been serious.Mr Haerewa's history demonstrates a disturbing pattern of serious offending.Has serious harm been caused to the community by Mr Haerewa's offending?[58] Ms Isaacson said that Mr Haerewa's serious offending has occurred in thecontext of domestic relationships and therefore "did not generalise to harm of thewider community". If Ms Isaacson was attempting to suggest that domestic violencedoes not cause serious harm to the community, then we reject that proposition.This Court has previously made clear that "[f]amily violence has become one of thescourges of New Zealand society" and offending of the kind that Mr Haerewa hasengaged in "affects the sense of security of the whole community".14[59] The comments we have cited in [58] aptly explain why Mr Haerewa'soffending in this case inflicts serious harm upon the wider community.Is there information indicating a tendency for Mr Haerewa to commit serious offencesin the future?[60] While ultimately this is a matter for judicial assessment, the answer to thisquestion can, in this case, be helpfully informed by the reports of the health assessors.15[61] In addressing this question, we again acknowledge the challenge of attemptingto predict the likelihood of Mr Haerewa committing serious offences at a distant futurepoint in time. In making our assessment, we have weighed Mr Haerewa's history ofserious violent offending, his lack of responsiveness to prior treatment programmesand his known characteristics. We have also had regard to the expert opinions of healthassessors, all of whom recognise that Mr Haerewa has a tendency to commit seriousoffences in the future. The only optimistic appraisal of Mr Haerewa is contained inMs Isaacson's report. She, however, acknowledges that if Mr Haerewa is notresponsive to treatment, then he will have a tendency to commit serious offences inthe future against those with whom he is "cohabiting".[62] If Mr Haerewa were to serve a finite term of 9 years' imprisonment, then hewould be 51 at the time of his release. It is likely he could quickly form anotherrelationship thereby setting the scene for further serious violent offending against hispartner and any children with whom he lives. We are therefore satisfied that thecriterion prescribed in s 87(4)(c) of the Act is satisfied.14 Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 at [27]; and R v McLean[1999] 2 NZLR 263 (CA) at [12].15 R v Johnson [2004] 3 NZLR 29 (CA) at [19].Is there an absence of, or failure of efforts by Mr Haerewa to address the causes of hisoffending?[63] As we have previously noted, during his last term of imprisonmentMr Haerewa completed four rehabilitative programmes and courses of treatment thatwere focused upon his tendency towards domestic violence.[64] Notwithstanding these efforts Mr Haerewa soon relapsed into a pattern ofserious domestic violence when he started living with F and members of her family.[65] We note Ms Isaacson has emphasised Mr Haerewa's willingness to engage infurther treatment and that he would benefit from treatment that focused uponmitigation of him engaging in violent acts towards a partner. NotwithstandingMs Isaacson's suggestions, we consider it significant when Mr Haerewa began to feelstressed in his relationship with F he quickly resorted to acts of very serious physicaland psychological violence.[66] Tragically, Mr Haerewa was not able to respond positively to the courses andtreatment programmes he received prior to commencing his relationship with F andhe has therefore failed to address the causes of his offending.Is a lengthy determinate sentence preferable if this provides adequate protection forsociety?[67] We firmly endorse the principle that a lengthy determinate sentence ispreferable to a sentence of preventive detention, provided a finite sentence ofimprisonment provides adequate protection to society. We also appreciate the need toconsider whether less restrictive options, such as the imposition of an ExtendedSupervision Order (ESO) upon release from prison may mitigate the risk ofMr Haerewa reoffending if sentenced to a finite term of imprisonment.[68] We are satisfied that a sentence of preventive detention is required in order toprotect the community from the significant and ongoing risk that Mr Haerewa posesto the safety of members of the community, and in particular, those women andchildren with whom he may end up living.[69] An ESO may provide adequate protection to society in cases where the Courtcan have confidence about the efficacy of such an order. Regrettably, that is not so inthis case. We have reached this conclusion because Mr Haerewa has demonstrated aninability to comply with community-based orders and we are satisfied that nothingshort of a sentence of preventive detention will serve the needs of society.Mr Haerewa's failures to comply with community-based orders and directionsinclude:(a) breaching his conditions of release following the conclusion of hismanslaughter sentence; and(b) acknowledging to Dr Jacques that he withheld information fromOranga Tamariki during his relationship with F.[70] We are also concerned Mr Haerewa has continued to minimise the impact ofhis offending and that he even attributes blame to his victims for the circumstances hecreated.[71] We therefore have no confidence that a determinate sentence coupled with anESO would provide adequate protection for society, and in particular, those who arelikely to become further victims of his profound potential for very serious domesticviolence.Minimum period of imprisonment[72] Section 89(1) of the Act requires us to impose an MPI, which must not be lessthan 5 years. Section 89(2) of the Act requires an MPI longer than 5 years when suchan order is necessary to reflect the gravity of a defendant's offending or to protect thecommunity.16[73] We consider Powell J was correct to impose an MPI of 6 years when hesentenced Mr Haerewa to 9 years' imprisonment. An MPI of 6 years in this case isappropriate in order to reflect the gravity of Mr Haerewa's offending and to protect16 Ellmers v R [2013] NZCA 676 at [38].the safety of the community bearing in mind Mr Haerewa's age and the risk hecurrently poses.Result[74] The appeal is allowed.[75] The sentence of 7 years and 7 months' imprisonment for sexual violation byunlawful sexual connection is quashed and substituted with a sentence of preventivedetention.[76] The MPI of 6 years remains in place.[77] All other sentences imposed by the High Court remain in place and are to beserved concurrently.Solicitors:Crown Law Office, Wellington for Appellant