Cooper v R [2020] NZCA 683 (22 December 2020)

Last Updated: 23 December 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA158/2020 [2020] NZCA 683

	BETWEEN	LOU APE COOPER Appellant
	AND	THE QUEEN Respondent

Hearing:	9 November 2020
Court:	Kós P, Thomas and Gendall JJ
Counsel:	G R Anson for Appellant J M Pridgeon for Respondent
Judgment:	22 December 2020 at 3 pm

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed.
2. The sentence of preventive detention on the charges of wounding with intent to cause grievous bodily harm and injuring with intent to cause grievous bodily harm is quashed and substituted with a sentence of 12 years and five months’ imprisonment.

100. The minimum period of imprisonment of eight years and three months remains in place.

4. All other sentences imposed by the High Court remain in place and are to be served concurrently.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

• [1] Mr Cooper was convicted in the High Court at Whangārei following guilty pleas on 15 charges relating to serious physical assaults on his partner over a seven‑month period from August 2017 to February 2018. They included one charge of wounding with intent to cause grievous bodily harm^[1] and one charge of injuring with intent to cause grievous bodily harm^[2] (the qualifying violent offences).^[3] He was sentenced by Gordon J to preventive detention.^[4] This was coupled with a minimum period of imprisonment of eight years and three months. Finite concurrent sentences of imprisonment were imposed on the remaining 13 charges.^[5]
• [2] Mr Cooper appeals his sentence of preventive detention and argues rather that a finite term of imprisonment should have been imposed. He does not otherwise challenge the finite sentence the Judge would have imposed of 12 years and five months’ imprisonment. Nor does he seek to revisit the minimum period of imprisonment imposed of eight years and three months.
• [3] Mr Cooper’s appeal against his preventive detention sentence is brought largely on the grounds that:

(a) the Judge erred in her assessment under s 87(2)(c) of the Sentencing Act 2002 of the likelihood of Mr Cooper committing another qualifying violent offence at his sentence expiry date; and

(b) the Judge failed to take into account relevant considerations when exercising her discretion under s 87(3) of the Sentencing Act.

Background

• [4] There is no dispute as to the facts of the instant offences. We adopt the Judge’s summary:^[6]

[8] Mr Cooper, you have been in a cyclical relationship with the victim for many years and you have three children together. This was a relationship characterised by your violence towards her. A protection order was obtained by the victim against you in November 2010. During all of the events which I am about to describe, you were in breach of that protection order. In August 2017, you were released from prison after serving a sentence of imprisonment for violent offending against the victim.

[9] The following month you were together at an address in Moerewa. You struck the victim about her head, took her by the hair and pressed her head against a wall in one room and then forced her head through a wall in the hallway. The force you applied was sufficient to leave holes in the plaster board walls. The victim had an asthma attack and began struggling to breathe. At this point you sat on top of her and from this position you head butted her, causing swelling to her head. The victim’s brother came to her assistance on this occasion. This offending gave rise to a charge of assault with intent to injure.

[10] On another occasion, sometime between August 2017 and February 2018, you were driving a vehicle with the victim in the passenger seat. You struck her on a number of occasions around her leg. She attempted, unsuccessfully, to get out of the moving vehicle. You started punching her about the head and did so several times. You stopped the vehicle and pulled the victim from it. You sat on the victim and placed your hands around her throat. The victim lost consciousness in consequence. She remembered you head butted her on this occasion. This offending gave rise to a charge of male assaults female.

[11] During the same period, at an address in Moerewa, you punched the victim in the mouth with a closed fist. She attempted to leave the house and you pursued her and tackled her to the ground. You propelled her into a tin fence on the property. The victim’s leg became lodged in the fence. You approached her, placing your hand over her mouth and your knee on her abdomen. You pushed her leg into the fence and caused the tin to cut her leg. She bled as a result. You continued to attack the victim, punching her about the head and torso. Her efforts to leave were prevented when you locked the gate. Following this offending, she was left with a split lip and a 6cm cut at the bottom of her leg which was scarred. This offending gave rise to a charge of injuring with intent to injure.

[12] Sometime during the first half of December 2017, the victim was asleep in her car at an address in Moerewa. You awoke her and as she got out of the car, you struck her and knocked her over. She attempted to seek cover under the car but you were still able to strike her in the head and around her legs. Following the intervention of the victim’s father you left the property. She felt unwell and sought medical treatment. She drove to the medical centre but lost consciousness on the way there. She was admitted to Bay of Islands Hospital and later transferred to Whangarei Hospital for a CT scan. The injuries she sustained on this occasion were bruising to her face, swelling to her left eye, bruising around her left thigh and around her left scapula (reflecting the limited protection provided by the car). This offending gave rise to a charge of injuring with intent to injure.

[13] On 28 January 2018, the victim was staying at a motel in Whangarei. You arrived during the afternoon, in possession of a firearm. You kicked the victim and threatened to kill her. The motel manager intervened, and you departed. You returned later in the afternoon. You forced the victim onto a bed in the motel room and pinned her there by straddling her. You punched the victim about the head multiple times. The motel manager intervened again and you departed. The victim was left with swelling to her head and feeling light headed. This offending gave rise to a charge of injuring with intent to injure.

[14] Sometime between the start of 2018 and mid-February 2018, you and the victim were at your mother’s house. You had recently consumed methamphetamine. You struck the victim and used a methamphetamine pipe as a weapon to assault her around the mouth. She was rendered unconscious. After she recovered consciousness, she found you assaulting her about the head. You dragged her by the hair down the hallway and out to a vehicle. You used the butt of a firearm to assault the victim. You placed the barrel of the firearm in the victim’s mouth, put your finger on the trigger and threatened to kill her. You went on to place her in the front passenger seat of the vehicle and, after entering the vehicle yourself locked the doors. During the journey which followed, you continued to hit her about the head. She lost consciousness for a period. You suffered a seizure and slept for some time. The victim returned you to your mother’s house where you continued to sleep. After you woke, you continued to strike the victim and she lost consciousness again. The victim was left in considerable pain after this assault. She was unable to open her left eye, had bruising and swelling around her eyes and a split lip. This offending gave rise to a charge of injuring with intent to do grievous bodily harm.

[15] Between late January and early February 2018, at an address in Kawakawa, you grabbed the victim by the hair and forced her to the ground where you struck her about the head several times and forced her face into the driveway. You then went into the house and came out with a modified shotgun. You pointed the firearm in the direction of the victim and threatened to shoot her. She escaped but you subsequently found her and pointed the firearm in her direction. This offending gave rise to a charge of assault with intent to injure and threatening to do grievous bodily harm.

[16] On 11 February 2018, the victim was seated in the back of a car parked at a property in Kawakawa. You arrived there. You attempted to remove the victim from the car but you were unable to do so. You punched the victim about the head with a closed fist several times. The victim’s brother intervened. Before departing, you threatened the victim’s friend. Later that day you unsuccessfully attempted to resume your assault on the victim at a service station in Kawakawa. The victim suffered swelling and bruising around her head following this assault. This offending gave rise to charges of injuring with intent to injure and male assaults female.

[17] The final prolonged assault on the victim by you occurred the following day. Around midday on 12 February 2018, you found the victim and took her to Moerewa Primary School. The circumstances of the offending over the next three hours were recorded on the school’s CCTV system (both audio and video). Due to the nature of the assault, and the brain injuries she suffered, the victim’s memory of what occurred is limited. The video recording shows only part of the assault, because of the angle of the camera, but the audio records all of the sound. The audio is of a person being hit with a hard object. The victim recalls you dragging her across concrete and hitting her across the legs on multiple occasions with what she describes as a piece of pipe. The audio recording shows this continued for three hours. The victim lost and regained consciousness several times during this period. The video recording also shows you kicking, punching and stomping on the victim repeatedly. The audio recording contains five statements made by you to the victim which are threats to kill her (either directly or impliedly or by inference).

[18] The victim was semi-conscious, seriously injured and in considerable pain. You and the victim remained at the school overnight before you took her to your mother’s house. She remained there for a day unable to move and with a slowly worsening brain bleed making her more unwell. Eventually she was taken to hospital by an associate. As a result of this assault, the victim sustained multiple injuries: subdural bleed, fractured lower back ribs, swelling to the front lobe of her brain, nose fracture, pneumothorax tear (lung), bilateral haemorrhaging to the left and right eyes and bruising and abrasions to the majority of her body. This offending gave rise to the charges of causing grievous bodily harm with intent to cause grievous bodily harm and threatening to kill.

[19] Ten days later, on 22 February 2018, you were arrested by police. You were found to be in possession of approximately one quarter of a gram of methamphetamine.

Mr Cooper’s criminal history

• [5] Mr Cooper’s earlier criminal history, aside from the index offending, contains multiple convictions for violent offending, principally in a family violence context and almost exclusively against one particular complainant who was his same partner. This history of violent offending is:

(a) In March 2003, at age 17, Mr Cooper was sentenced to one year and three months’ imprisonment for aggravated wounding and aggravated robbery.

(b) The remaining sentences all involved convictions for offending against Mr Cooper’s partner who was the subject of the index offending here:

(i) On 10 February 2009, Mr Cooper was convicted on a male assaults female charge and sentenced to come up for sentence if called upon within nine months.

(ii) On 23 February 2010, he was sentenced to community work and nine months’ supervision on four charges of threatening to kill or do grievous bodily harm.

(iii) On 20 December 2010, he was sentenced to nine months’ imprisonment on a charge of male assaults female.

(iv) On 15 February 2012, he was sentenced to one year and 11 months’ imprisonment on charges of assault with intent to injure and breaching a protection order.

(v) On 5 March 2013, he was sentenced to nine months’ supervision and community work on charges of breaching a protection order and wilful damage.

(vi) On 14 November 2013, he was sentenced to nine months’ imprisonment on a charge of common assault and two charges of breaching a protection order.

(vii) On 10 July 2015, he was sentenced to one year and eight months’ imprisonment on charges of injuring with intent to injure, assault with a weapon and breaching a protection order.

(viii) On 24 August 2017, he was sentenced to two years and one month’s imprisonment on two charges of male assaults female and breaching a protection order.

• [6] In addition, Mr Cooper also has numerous past convictions for other offending including theft, burglary, receiving, motor vehicle offences, escaping from custody, and breaching release conditions and community-based sentences.

Health assessors’ reports

• [7] Two health assessor reports prepared for Mr Cooper pursuant to s 88(1)(b) of the Sentencing Act were before the Judge.^[7] The first was a report by Dr Olivera Djokovic, a consultant psychiatrist, and the second by Dr John Jacques, also a consultant psychiatrist.
• [8] Relevant to the issue of significant and ongoing risk to the community posed by Mr Cooper on his release, Dr Djokovic’s comments were prefaced by noting the inherent difficulties in estimating that risk. She spoke in her report of the uncertainty as to when Mr Cooper’s finite sentence would end. She also stated that the assessment could not take into account any risk-reducing interventions that may occur, nor could it account for so-called “stable” and “acute” dynamic factors that may affect the risk. Dr Djokovic noted that Mr Cooper had also indicated he was willing to address his drug and anger problems and although he had attended some group sessions while in prison, his earlier sentences of imprisonment were too short to qualify him for psychological assessment and support. This apparent willingness on Mr Cooper’s part to participate in rehabilitation was also confirmed in the report from the other health assessor, Dr Jacques. His report noted Mr Cooper expressed a “strong desire to change”, identifying his environment, drug use and relationship with the complainant as factors contributing to his offending. Dr Jacques, in noting that Mr Cooper had “multiple risk factors” for future serious violence, concluded that he carried a “high risk of committing a future qualifying offence towards his partner”. Significantly, the health assessors noted that Mr Cooper had not received psychological treatment for early physical and sexual abuse he had suffered and which Dr Jacques, in particular, identified as a cause of his longstanding psychological problems.
• [9] As to this, the Department of Corrections’ pre-sentence report before the Judge, in referring to the abuse suffered by Mr Cooper as a child, noted:

... Mr Cooper disclosed that he was sexually and physically abused by an immediate family member between the ages of eight and 11. He described the topic was “a box” he has not opened before, however, he is open to getting the necessary treatment once his matters are finalised in Court.

High Court sentencing decision

• [10] The Judge first considered the appropriate finite sentence and whether a minimum term of imprisonment should be imposed. She took a starting point of 10 years and six months’ imprisonment on the two lead offences noted at [1] above and, to reflect totality to include Mr Cooper’s other offending, made an uplift of four years’ imprisonment. From that overall starting point of 14 years and six months’ imprisonment, she made a further uplift of one year to take into account his lengthy list of previous convictions. She then considered mitigating features relating personally to Mr Cooper and also allowed a 15 per cent discount for his guilty plea. This resulted in a provisional finite sentence of 12 years and five months’ i[8]prisonment.⁸
• [11] The Judge then considered preventive detention, the sentence sought by the Crown. That is governed by s 87 of the Sentencing Act. Mr Cooper qualified for that sentence in terms of s 87(2)(a), being a person convicted of a qualifying violent offence and s 87(2)(b), he being over 18 years of age.^[9] The other pre-condition in s 87(2)(c) required the Judge to be satisfied that Mr Cooper was likely to commit another qualifying sexual or violent offence if released at the sentence expiry date. In considering that pre-condition and the mandatory considerations in s 87(4), the Judge found:

[83] Given your history of offending, the current offending and the opinions in the two reports, I consider there is enough evidence to indicate you are likely to commit another qualifying violent offence in the future.

...

[85] ... You have repeatedly committed violence offences against the victim. On multiple occasions you have repeatedly struck the victim for an extended period and, in several instances, your violence has caused her to lose consciousness.

[86] Moreover, there has been a significant escalation in the level of violence you use. ...

[93] ... [I]n my view you represent a serious risk to the victim and the community should you be released. Your willingness to address the offending now is acknowledged, but that does not take things far enough in the overall assessment.

These conclusions were reached largely from the evidence of the health assessors who assessed Mr Cooper as being at a high risk of future violent offending, in particular relating to the complainant, his partner.

• [12] Whilst Mr Cooper told report writers that he was motivated to complete treatment programmes to address his use of violence, his anger management and substance abuse, the Judge noted that, when he was sentenced in August 2017 to a period of imprisonment, his release conditions included psychological assessments and substance abuse treatment programmes but, post-release, either he did not complete these or he undermined efforts to do so. The Judge did acknowledge, however, that Mr Cooper reported he was not previously offered treatment programmes whilst he was in prison.^[10] The Judge went on to conclude, however, that a lengthy determinate sentence would not adequately protect the community.^[11] On this basis, she imposed a sentence of preventive detention with a minimum term of eight years and three months’ imprisonment.^[12]

Submissions

• [13] For Mr Cooper, Mr Anson submitted a finite sentence should have been imposed rather than preventive detention. He submitted the Judge had erred in that she did not consider Mr Cooper’s sentence expiry date (July 2032) when discussing the risk or likelihood of Mr Cooper committing a qualifying violent offence in terms of s 87(2)(c) of the Sentencing Act. Nor did she evaluate a number of matters which reduced the likelihood of Mr Cooper committing a qualifying violent offence after his finite sentence expiry date: he had not received psychological treatment for the early physical and sexual abuse which he suffered, which Dr Jacques identified as a cause of his longstanding problems; he had not previously experienced a long-term sentence which would provide a significant deterrent to reoffending; his past failures to engage in rehabilitation in the community would not apply if he was serving a long‑term sentence and was assessed and offered treatment in a prison environment; the prospect of an application for parole after serving two-thirds of a 12 year and five month sentence would offer a strong incentive to complete rehabilitation; and his violent offending had been directed almost exclusively at one complainant, his partner, although previously he had a further four partners and there was no suggestion of violence being directed at any of them.
• [14] In any event, Mr Anson submitted that the Judge erred in the exercise of her discretion in terms of the five mandatory considerations in s 87(4) of the Sentencing Act. In particular he suggested this had occurred by the misapplication of the principle that a lengthy determinate sentence for Mr Cooper is preferable if this provides adequate protection for society.
• [15] Ms Pridgeon’s overall submission for the Crown was that the sentence of preventive detention was correctly imposed here and the Judge made no error in completing her assessment of this under s 87 of the Sentencing Act. As to whether the Court can be satisfied that Mr Cooper is likely to commit another qualifying offence at the July 2032 sentence expiry date, Ms Pridgeon took several points: Mr Cooper has a parlous history of family violence offending stretching over a decade; many previous sentences of imprisonment have failed to have a significant deterrent effect; both health assessors and the pre-sentence report writer concluded that Mr Cooper carried a high risk of violent reoffending; Mr Cooper’s comments to Dr Jacques that he recognised his relationship with the complainant must end should be viewed with a degree of scepticism; any suggestion Mr Cooper will successfully engage in rehabilitative programmes is also speculative; and he has demonstrated little insight into his offending, and he continues to blame the complainant.
• [16] Lastly, on the overall principle, under s 87(4)(e), that a lengthy determinate sentence is preferable, the Crown suggests that, if anything, Mr Cooper would be more incentivised to engage with rehabilitative measures while serving a sentence of preventive detention than he would be if serving a finite sentence. The Crown suggests this is because with a sentence of preventive detention Mr Cooper would not be released from prison until the Parole Board is satisfied that he no longer poses a risk to the community (and only after serving a period of eight years and three months in prison). On the other hand, the Crown says that if a finite sentence were imposed, Mr Cooper could simply await his sentence expiry date without engaging in rehabilitation, safe in the knowledge that he will eventually be released.

Analysis

• [17] Sentencing in a case of this type is not an easy exercise but we are satisfied that the appeal must be allowed. Whilst there was jurisdiction to impose a sentence of preventive detention on the qualifying violent offences, we find the case for doing so here was not a compelling one. We turn now to the specific reasons why we differ from the Judge. Those reasons concern Mr Cooper’s pattern of past violent offending which was targeted in the main against one partner only, the seriousness of the index offending as reflected in the determinate sentence that the Judge would have imposed and, importantly, the apparent absence of any past treatment together with the prospects of mitigating any risk Mr Cooper may pose through treatment being undertaken during and after a determinate sentence.
• [18] The first central issue here addresses the third-step requirement under s 87(2)(c) of the Sentencing Act: is it likely that Mr Cooper will commit a further qualifying violent offence following release from a determinate sentence? In addressing this issue we use the determinate sentence chosen by the Judge of 12 years and five months’ imprisonment to establish the sentence expiry date.
• [19] This is not an altogether straightforward issue here, because it does seem the risk that Mr Cooper presents stems from his overall attitude rather than inherently intractable features such as mental illness.^[13] That he might, with therapeutic treatment, learn from his past mistakes is always a possible result when intensive treatment is applied. This is not to suggest, however, that anything Mr Cooper has done to his partner, the complainant, was anything other than exploitative. He regarded himself as having an entitlement to behave in the manner he did. The point we make is simply that with treatment he may well demonstrate an ability to modify this behaviour.
• [20] The index family violence offending here was undoubtedly serious, prolonged and very traumatic for the complainant. Mr Cooper’s repeated attempts to control and seriously injure her, and his subsequent endeavours to victim-blame, are of particular concern. His conduct could only be seen as extremely manipulative and damaging, both for the complainant, their children and all concerned.
• [21] But, when we consider the health assessors’ reports, plainly we are unable to say that treatment is unlikely to help Mr Cooper here. No completed attempts at significant treatment have occurred in the past. The minimal post-release treatment efforts which have been attempted have failed. We find, therefore, that the principle that a determinate sentence is preferable to allow intensive treatment for Mr Cooper to occur will apply here. That treatment might well have to persist beyond the term of the sentence, but we are satisfied that an extended supervision order (ESO) would likely be available if satisfactory progress is not made.^[14]
• [22] Mr Cooper is a relatively young man at age 34. Several factors suggest that he is capable of modifying his behaviour and might do so with the incentive that a determinate sentence could provide. Plainly, for a variety of reasons, Mr Cooper has not received significant treatment or assistance in the past either for his offending or for the early physical and sexual abuse which Dr Jacques identified as a cause of his long-standing problems.^[15] It does seem that generally in the past Mr Cooper did not seek this treatment and in fact had been obstructive towards it. Notwithstanding this, in our view significant treatment undertaken in the controlled environment of a prison setting might well assist.^[16]
• [23] A consideration with respect to this aspect is that, with the exception of his one set of offending in 2003 at age 17, Mr Cooper has no history of violent offending against any of his previous five partners or other members of the public other than this partner, the complainant. It remains true, however, that his offending against the complainant has been serious and has generally occurred continuously for a decade throughout their relationship except when he has been in prison.
• [24] We accept that assessing the risk of Mr Cooper reoffending at the expiry of a finite sentence here was not an easy exercise. In our view the Judge to an extent erred however in that she did not relate the assessment of that risk under s 87(2)(c) to the sentence expiry date. And, on this, apart from her reference to Mr Cooper’s historic and current offending, the Judge relied on the reports from the health assessors which addressed the likelihood of future offending generally. The report writers could not specifically assess the likelihood of offending after the expiry of a finite sentence because that date was unknown to them, but their reports of general future risk nevertheless do have utility. Relevant here too is the likelihood of Mr Cooper engaging in therapeutic treatment, such that it could reduce his reoffending risk to an acceptable level, a matter which can better be assessed after such programmes are completed.^[17]
• [25] We turn now to briefly consider the second of the central issues here, addressing the fourth-step requirement under s 87 of the Sentencing Act, which is whether the Judge erred in exercise of her discretion in imposing preventive detention in terms of s 87(3). This is a finely balanced case, but we must make our own evaluation.^[18]
• [26] Having done so, we conclude that a determinate sentence with a detailed treatment plan for Mr Cooper is the better course. When considering the matters outlined in s 87(4) of the Sentencing Act, for all the reasons we have discussed, we are satisfied that the Judge gave insufficient weight in particular to the principle in s 87(4)(e) that a lengthy determinate sentence is preferable if it provides adequate protection for the community.^[19] We emphasise too the availability of an ESO which, if necessary, might well assist at the conclusion of a finite sentence. This Court in R v Mist said that, given the requirement in s 87(4)(e), a court must consider the possibility of an ESO when determining whether a finite sentence will provide adequate protection to the community.^[20] It does not appear that happened here. As best we can tell, the Judge made no mention of an ESO at all in her judgment. And, as to the other matters to be taken into account in s 87(4), we have addressed these above, and are satisfied they too support a finite sentence being imposed here.
• [27] In all the circumstances we have outlined here, our assessment is that the point has not yet been reached where preventive detention is the appropriate sentence in Mr Cooper’s case. And we are satisfied that ultimately the community will be safer if Mr Cooper is motivated to reform. Our conclusion is that with appropriate treatment in a prison environment, which has not occurred to date, incentivised by the opportunity for parole, there is a real possibility that Mr Cooper is capable of changing his behaviour. He will now have a powerful incentive to acknowledge responsibility and a real reason to engage and accept treatment. If he fails to do so we expect it is unlikely he will be released before the end of a long determinate sentence and, indeed, the possibility of imposing an ESO after his release then remains.^[21] As we see it, the interests of the community are better served if Mr Cooper receives a lengthy determinate sentence such as that provided for here and thereby is provided with the incentive and opportunity to participate in and complete rehabilitative programmes in prison.
• [28] For all these reasons this appeal succeeds.
• [29] And, as we have noted, no issue is taken on this appeal with either the determinate sentence or the minimum term of imprisonment identified by the Judge here.

Result

• [30] The appeal against sentence is allowed.
• [31] The sentence of preventive detention on the charges of wounding with intent to cause grievous bodily harm and injuring with intent to cause grievous bodily harm is quashed and substituted with a sentence of 12 years and five months’ imprisonment.
• [32] The minimum period of imprisonment imposed of eight years and three months’ is confirmed.
• [33] All other sentences imposed by the High Court remain in place and are to be served concurrently.
• [34] The Department of Corrections is strongly encouraged to consider the availability of rehabilitative programmes for Mr Cooper in advance of the expiration of the period of his minimum period of imprisonment.

Solicitors:
Crown Solicitor, Manukau for Respondent

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^[1] Crimes Act 1961, s 188(1): maximum penalty of 14 years’ imprisonment.

^[2] Section 189(1): maximum penalty of 10 years’ imprisonment.

^[3] Sentencing Act 2002, s 87(5)(b).

^[4] R v Cooper [2020] NZHC 329 [Sentencing notes].

^[5] These were three charges of assault with intent to injure, one representative charge of contravening a protection order, two charges of male assaults female, three charges of injuring with intent to injure, one charge of threatening to do grievous bodily harm, one charge of threatening to kill, one representative charge of unlawfully possessing a firearm and one charge of possessing methamphetamine.

^[6] Sentencing notes, above n 4.

^[7] Section 88(1)(b) of the Sentencing Act provides that a sentence of preventive detention must not be imposed unless the court has considered reports from at least two appropriate health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence.

^[8] Sentencing notes, above n 4, at [42]–[67].

^[9] At [73].

^[10] At [92].

^[11] Sentencing Act, s 87(4)(e).

^[12] Sentencing notes, above n 4, at [94]–[98].

^[13] Both health assessors in their reports diagnose Mr Cooper as having substance use disorder on the background of an anti-social personality structure. Dr Djokovic recommended that Mr Cooper be “able to access culturally appropriate treatments for his anger management, as well as engaging with a correctional psychologist for individualised treatment in order to address his childhood abuse and his drug dependency. ... Upon satisfactory participation and completion in these programmes, Mr Cooper’s risk of future violent offending will be able to be assessed with greater precision.” Dr Jacques recommended that Mr Cooper “requires extensive psychological interventions and should be referred to the Corrections Psychology Department for an assessment of his treatment needs ... he will require specific work on family violence and relationships, substance abuse and violent offending. Further work to address psychological trauma arising from early abuse and trauma is also indicated ... It is positive that [Mr Cooper] verbalises a willingness to engage and change his life.”

^[14] Mr Cooper would be an eligible offender for an ESO under s 107C(1)(a) of the Parole Act 2002 and he was sentenced on two relevant offences as defined by s 107B: injuring with intent to cause grievous bodily harm and wounding with intent to cause grievous bodily harm. For the High Court, as the sentencing court, to make an order for extended supervision, it must be satisfied that Mr Cooper has, or has had, a pervasive pattern of serious violent offending and that there is a very high risk he will in future commit a relevant violent offence in terms of the requirements set out in s 107IAA(2) of the Parole Act. In our view, it is likely Mr Cooper would qualify for an ESO in terms of s 107IAA.

^[15] As we have noted, Dr Jacques confirms too in his report that Mr Cooper was willing to access help: see above at [19], n 13.

^[16] Additionally, the prospect for Mr Cooper of an application for parole after serving two-thirds of a finite sentence, as we see it, would provide a strong and new incentive for him to seek treatment and complete rehabilitation.

^[17] Dr Djokovic, as noted above at [19], n 13, refers specifically to this aspect in the concluding paragraphs of her report.

^[18] Kumar v R [2015] NZCA 460 at [77]–[83].

^[19] An important factor under s 87(4)(e) is the extent to which an offender may have had the opportunity to participate in rehabilitation programmes. This Court in Pritchard v R [2010] NZCA 403 at [39]–[41], influenced by the fact that (like here) the offender’s previous terms of imprisonment were not long enough to enable him to participate in rehabilitative programmes before, held that preventive detention was not appropriate and a finite prison term was sufficient to allow treatment to occur. See also McDonald v R [2009] NZCA 248 at [38]–[39]; and Hartley v R [2014] NZCA 162 at [147] and [151].

^[20] R v Mist [2005] 2 NZLR 791 (CA) at [101].

^[21] This Court in R v Parahi [2005] 3 NZLR 356 (CA) at [33] noted that the fact this might occur “... while not relieving the sentencing Judge from the decision whether to impose preventive detention, has the advantage that, in a finely balanced case, it allows a risk assessment to be made at the time a prisoner is about to be released, rather than requiring before the sentence, predictive assessments”.