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DEAN v R [2004] NZCA 322 (17 December 2004)

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DEAN v R [2004] NZCA 322 (17 December 2004)

Last Updated: 20 April 2005

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA172/03

THE QUEEN

v

ALLAN KENDRICK DEAN

Hearing: 10 November and 15 December 2004

Court: Anderson P, Hammond, William Young, Chambers, and O'Regan JJ

Counsel: T Ellis and A Shaw for Appellant
S P France and M F Laracy for Crown

Judgment: 17 December 2004

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS

(Given by Chambers J)

Table of Contents

Para No
Introduction [1]
Issues on the appeal [11]
Maximum sentence three years’ imprisonment? [20]
Judge Keane’s decision to decline jurisdiction [26]
Can s 44(2)(a) be used where the charge is laid summarily [27]
Form of information [28]
No repleading [31]
Psychiatric report [33]
The test under s 44 [37]
Lawfulness of the committal to the High Court [41]
Effect of procedural error [48]
The appropriateness of preventive detention [50]
Power to reduce sentence because defendant’s rights have been infringed [87]
The 1970 file [94]
Bail [99]

Introduction

[1] On 24 June 1995, the complainant, a 13 year old male college student, attended a movie at Coastlands cinema complex. Allan Dean, the appellant, came into the cinema and sat down beside the complainant. About 20 minutes later Mr Dean slid his right arm across and placed it lightly on the complainant’s crotch. The complainant was angry and frightened by Mr Dean’s action. He got up and moved away from him.
[2] After the movie finished, the complainant followed Mr Dean from the theatre so that he could identify him. He gave theatre staff a description of the man who had touched him. Mr Dean returned to the cinema the following day and was recognised. The police were called. They questioned Mr Dean. He admitted attending the cinema the previous day and being sexually attracted to young males, but he denied having touched the complainant.
[3] The police charged Mr Dean with indecent assault, contrary to s 140A of the Crimes Act 1961. Because of the issues raised in this appeal, it is necessary now to relay the procedural path the case thereafter followed.
[4] On 31 August 1995, Mr Dean came before Judge MacLean. Mr Dean entered a plea of guilty. Judge MacLean indicated to him that the District Court was likely to decline jurisdiction with respect to sentencing. That was because Mr Dean had a number of previous charges for indecent assaults on males, both over 16 and under 16. Judge MacLean made an order under s 121(2)(b)(i) of the Criminal Justice Act 1985 committing Mr Dean to a penal institution for the purpose of psychiatric examination.
[5] As a consequence of that order, Mr Dean was seen by Dr Edward Rowan, the Acting Director of Mental Health Services at Porirua Hospital. He prepared a report on 7 September 1995.
[6] Mr Dean came back before the court on 21 September 1995. On that occasion, Judge Keane presided. At that hearing, Judge Keane considered, amongst other things, Dr Rowan’s report, a pre-sentence report, and Tipping J’s sentencing notes of 22 October 1993, when Tipping J was sentencing Mr Dean on a charge of indecent assault on a boy aged between 12 and 16. In a reasoned decision, Judge Keane declined jurisdiction under s 44(2)(a) of the Summary Proceedings Act 1957 and committed Mr Dean to the High Court for sentence on 6 October 1995.
[7] In fact, Mr Dean was not sentenced in the High Court until 3 November. On that date, Williamson J determined that the appropriate sentence was preventive detention, pursuant to s 75 of the Criminal Justice Act 1985. Mr Dean was eligible for preventive detention under s 75(1)(b). But for that, the maximum penalty to which he could have been sentenced was seven years’ imprisonment.
[8] Mr Dean sought to appeal against that sentence. Under the then practice of this court, Mr Dean’s application for legal aid was considered by three judges of this court, who recommended that it be declined. As a consequence, Mr Dean had no lawyer to pursue the appeal. The appeal was subsequently dismissed, without reasons.
[9] Pursuant to R v Taito [2003] 3 NZLR 577 (PC) and R v Smith [2003] 3 NZLR 617 (CA), Mr Dean became entitled, on application, to a fresh hearing of his appeal. Mr Dean duly applied. We heard the appeal on 10 November 2004.
[10] We should indicate that Mr Dean remains in prison pursuant to the sentence of preventive detention. Since February this year, Mr Dean has been entitled to apply for early consideration for parole, pursuant to the Minister of Justice’s designation of 9 February 2004: see "Designation of a class of offenders who have not yet reached their parole eligibility dates for early consideration by the board for Parole", Gazette 2004, p 417. (The maximum finite sentence to which he could have been sentenced was seven years’ imprisonment, which term has already been served in full.) Mr Ellis, Mr Dean’s counsel, advised us that no application had been made.

Issues on the appeal

[11] Mr Ellis raised a number of issues on this appeal.
[12] The first issue was whether the maximum permissible sentence was three years’ imprisonment.
[13] The second was whether Judge Keane’s declining of jurisdiction under s 44(2)(a) of the Summary Proceedings Act was unlawful. Mr Ellis submitted that it was for one or more of the following reasons:

(a) Only charges laid indictably come within s 44(2)(a) and this charge was laid summarily;

(b) The information failed to specify the range of penalties Mr Dean faced;

(d) The judge wrongly considered a psychiatric report from a person who was not a psychiatrist;

(e) The judge gave undue weight to a warning given by another judge in an earlier sentencing decision and failed to take into account certain relevant considerations.

[14] The third issue raised was whether Mr Dean’s committal to the High Court was unlawful. Mr Ellis submitted that the committal form signed by Judge Keane was inappropriate and false.
[15] The fourth issue on the appeal was raised by the Crown. Mr France, for the Crown, submitted that, even if there was some procedural error as suggested by Mr Ellis, that would not affect Williamson J’s jurisdiction to sentence Mr Dean. Mr Ellis’s submissions seem to proceed on an assumption that, if he established any of the errors delineated in the first, second and third issues, the result should be Mr Dean’s immediate release. Mr France challenged that. He submitted such errors would have no effect on the High Court’s jurisdiction. At best from Mr Dean’s point of view, it would lead to the sentencing having to be redone. So the fourth issue, assuming Mr Dean’s success on any of the first three issues, is what the effect of such success is at law.
[16] The fifth issue is whether a different sentence should have been passed. Was preventive detention the appropriate sentence or should Mr Dean have been sentenced to a finite term of imprisonment?
[17] The sixth issue raises an interesting point concerning the New Zealand Bill of Rights Act 1990. Mr Ellis submits that this court and its staff (the registrar) have breached Mr Dean’s rights under the Bill of Rights by failing to accord him a prompt proper appeal. Mr Ellis submits, relying on Canadian jurisprudence, that this court should remedy its breach of the Bill of Rights by reducing the sentence Mr Dean should have to serve. The question this gives rise to, assuming a breach of Mr Dean’s rights, is whether this court has jurisdiction to provide such a remedy and whether, if it has, it is appropriate to reduce Mr Dean’s sentence on that account.
[18] After the hearing on 10 November, we decided that we would obtain from archives a sentencing file relating to offending committed by Mr Dean in 1970. We shall explain later in this judgment the reasons why we took that step. Having obtained the sentencing file, we made it available to counsel and invited submissions. Mr Ellis submitted that we had acted improperly in obtaining that file. That gives rise to the final issue on this appeal.
[19] We shall deal with the issues in turn.

Maximum sentence three years’ imprisonment?

[20] Mr Ellis submitted that the maximum permissible sentence which could have been imposed on Mr Dean was three years’ imprisonment. He advanced that submission on alternative bases.
[21] First, he relied on s 7 of the Summary Proceedings Act. In 1995, that section began:

Where any person is summarily convicted of an offence mentioned in section 6 of this Act, the Court may sentence him to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both:...

[22] Mr Ellis submitted that Mr Dean was "summarily convicted of an offence mentioned in section 6". He was not. The court declined to deal summarily with the offence, as it was entitled to do under s 44. Mr Ellis’s submission overlooks the section immediately following s 7, s 8:

(1) Nothing in this Part of this Act shall limit in any way - ...

(c) The jurisdiction and powers of the High Court or a District Court in relation to any indictable offence...or in relation to an offence that a District Court declines to deal with summarily under Part 2 of this Act...

[23] Section 44 is in Part 2 of the Act. The restriction on penalty imposed by s 7 accordingly does not apply where a District Court declines to deal summarily with an offence under s 44.
[24] As an alternative, Mr Ellis submitted that the same conclusion could be reached by application of s 17A(3)(b). This argument is untenable because s 17A did not and does not apply to this proceeding. Parliament specifically provided that s 17A did not apply to proceedings commenced before 5 April 1999: see the Summary Proceedings Amendment Act 1999, s 2(2).
[25] Both bases to this submission are unsustainable.

Judge Keane’s decision to decline jurisdiction

[26] As we have indicated, Mr Ellis’s submission was that Judge Keane’s declining of jurisdiction, purportedly under s 44(2)(a) of the Summary Proceedings Act was unlawful. We deal with Mr Ellis’s reasons in turn.

Can s 44(2)(a) be used where the charge is laid summarily?

[27] Mr Ellis submitted that it was not open to the court to "effectively [convert] the charge to an indictably laid one, something the police elected not to do". That submission is inconsistent with s 44(1). It is not necessary for the police to make any application under s 44(1): the District Court may, of its own motion, decline to deal summarily with the offence.

Form of information

[28] Mr Ellis’s second argument under this head was that the information was invalid and a nullity. This submission was made even though, at least on its face, the information was in the correct form specified by the Summary Proceedings Act: see s 15 and Second Schedule, Form 1. Notwithstanding that, Mr Ellis submitted that the information was ineffective in that it failed to specify the range of penalties available on conviction for that offence. Mr Ellis submitted that that additional requirement flowed from s 24(a) of the Bill of Rights. Under that paragraph, everyone who is charged with an offence is entitled to be informed promptly and in detail of the nature and cause of the charge. That includes, Mr Ellis submitted, details of the possible penalties. Mr Ellis cited no authority for that proposition.
[29] We reject the submission that the information was in improper form. It is true that in 1999 the Summary Proceedings Act was amended to provide that, in certain circumstances, the information was required to disclose the range of penalties available on conviction for the offence: see s 17A, as inserted by the Summary Proceedings Amendment Act 1999, s 2(1). But that provision was not in force at the date on which Mr Dean was charged. Mr Ellis submitted that s 17A merely enacted what was already obligatory under s 24(a) of the Bill of Rights. We do not accept that submission. The information given to Mr Dean did tell him the nature and cause of the charge: he knew that he was being charged under s 140A(1)(a) of the Crimes Act with indecently assaulting a named boy (aged 13) on 24 June 1995 at Paraparaumu. And, of course, in interviewing Mr Dean before charging him, the police fleshed out the boy’s allegations against Mr Dean. There was full compliance with s 24(a) of the Bill of Rights. The information was valid. At that time, it was not a requirement of the law that the information contain details of the range of penalties available on conviction. Indeed, at that time to have included the range of penalties would have been contrary to s 15(1) of the Summary Proceedings Act.
[30] We also note that, assuming the other grounds of attack under this head fail, this argument would also be bound to fail under s 169 of the Summary Proceedings Act (incorporated as it is by s 44(2)(a)). Under that section, "no objection on any ground whatever shall be taken to any information to which the defendant has pleaded guilty".

No repleading

[31] Mr Ellis’s third point under this head was that, once Judge Keane formed the view that he might decline jurisdiction, he was bound to give Mr Dean the opportunity to withdraw his plea of guilty. There is no such requirement under the Summary Proceedings Act. It was, of course, open to Mr Dean to seek to withdraw his plea, but only a High Court judge has power to grant such leave: see s 169 of the Summary Proceedings Act, which was applicable to Mr Dean’s circumstances by virtue of s 44(2)(a). Not only was Judge Keane under no obligation to give Mr Dean the opportunity to withdraw his plea of guilty but also he would have been acting without jurisdiction to do so. Mr Dean would have needed to make his application to withdraw his plea in the High Court.
[32] We may add that there is no evidence whatever that Mr Dean has ever sought to withdraw his plea. Nor is there any evidence that he denies his guilt with respect to the offence charged.

Psychiatric report

[33] Mr Ellis does not dispute Judge MacLean’s jurisdiction to order Mr Dean to undergo a psychiatric examination. But, says Mr Ellis, the report produced was not by a psychiatrist. Accordingly, Judge Keane erred in considering it.
[34] Dr Rowan saw Mr Dean on 6 September 1995 and wrote his report the following day. Mr Ellis provided to us a law report reporting a case heard by the Supreme Court of New Hampshire. The case was Appeal of Edward L Rowan, MD (New Hampshire Board of Medicine) 694 A.2d 1002 (NH 1997). According to the report, one of Dr Rowan’s former patients complained to the New Hampshire Board of Medicine about a sexual relationship she said he had had with her while she was his patient. The board requested Dr Rowan to provide certain information from his records, both as to the complaint and as to the procedures Dr Rowan had used to close his practice and refer his patients to other practitioners when he had moved to New Zealand. Dr Rowan failed or refused to supply the information sought. Eventually, Dr Rowan was called before the board, who sought to impose sanctions on him for violation of the board’s order and subpoenas. At an unspecified date after 15 September 1995, the board held that Dr Rowan had engaged in professional misconduct by not reasonably responding to the board’s enquiries and requests for documents. Dr Rowan by this date had allowed his licence to practise medicine in New Hampshire to lapse. The board suspended Dr Rowan’s privilege to apply for reinstatement of his New Hampshire licence for one year, and thereafter until he complied with the board’s request for information. Dr Rowan appealed against that decision to the Supreme Court of New Hampshire. That court, on 5 June 1997, upheld the board’s suspension. We do not know whether there was any further appeal and, if so, what the result of that was.
[35] On the basis of what is contained in the report, Mr Ellis submitted that as at September 1995 Dr Rowan was not a psychiatrist. That is plainly wrong. Dr Rowan practised in this country pursuant to his New Zealand registration. There is no evidence before us that Dr Rowan’s New Zealand registration was at any time affected by what had happened in New Hampshire and it certainly could not have been affected as at 6 September 1995 because the board by then had made no orders against him. There is no evidence that Dr Rowan was not qualified to carry out the psychiatric examination ordered by Judge MacLean.
[36] In any event, there was no need for there to be a psychiatric report before the court exercised its s 44(2)(a) power. It was no doubt good practice for Judge MacLean to have sought the report, but it was not an essential step in the process. Even if, therefore, Dr Rowan had not been qualified in this country to prepare a psychiatric report as at 6 September 1995, that would not have affected the validity of Judge Keane’s decision to decline jurisdiction.

The test under s 44

[37] Mr Ellis’s final submission under this head was that Judge Keane had exercised his discretion under s 44 wrongly. Mr Ellis submitted that Judge Keane had given undue weight to certain comments made by Tipping J when sentencing Mr Dean in October 1993. Mr Ellis further submitted that Judge Keane had failed to consider Mr Dean’s early guilty plea, the minor nature of the offence, and whether the Kia Marama Programme was an appropriate programme for Mr Dean, since, Mr Ellis said, it was primarily addressed to serious sexual abusers of children, not for those who committed indecent assaults. Mr Ellis further submitted, somewhat inconsistently with the submission concerning Dr Rowan previously discussed, that Judge Keane had wrongly "paid scant regard to [Dr Rowan’s report]".
[38] There was some dispute between counsel as to the appropriate test District Court judges should apply when considering whether to decline jurisdiction. Mr Ellis placed emphasis on R v Robertson [2002] DCR 861, while Mr France’s preferred authority was R v Mahara [1994] DCR 282. We are not sure that there is any real difference between the approaches of the District Court judges in those cases. This is not the occasion to try to refine the precise test to be applied by District Court judges faced with the decision whether to decline jurisdiction. That is because it is obvious that, on any conceivable test, Judge Keane was right to decline jurisdiction. This case undoubtedly called for High Court evaluation, given Mr Dean’s long record of sexual offending and given in particular the clear warning Tipping J had given him in 1993 when sentencing him on virtually identical offending. On that occasion, Tipping J had ended his sentencing remarks with the following warning to Mr Dean:

I hope that we do not see you again. If we do it is almost certain that the Judge then presiding would have to pass a sentence of preventive detention: so the remedy is in your hands.

[39] We shall deal with Mr Dean’s record and circumstances more fully later in this judgment when considering whether Williamson J was right to impose a sentence of preventive detention. Suffice it to say at this stage that there can be no possible challenge to the correctness of Judge Keane’s assessment that a sentence of preventive detention warranted serious consideration, with the consequence that it was imperative that Mr Dean be committed to the High Court where consideration of the appropriate sentence (including preventive detention) could be undertaken.
[40] For the reasons given above, we have rejected all five of Mr Ellis’s submissions upon which he argued that Judge Keane’s declining of jurisdiction was unlawful. We hold that Judge Keane lawfully declined jurisdiction.

Lawfulness of the committal to the High Court

[41] Mr Ellis’s next submission arose if, contrary to his earlier submissions, we held (as we have) that Judge Keane lawfully declined to deal summarily with the offence. Mr Ellis submitted that ss 169-171 of the Act (which are made applicable by s 44(2)(a)) had not been complied with, with the consequence that the committal to the High Court was unlawful. The argument then continued: if the committal was unlawful, then Williamson J had no jurisdiction to sentence Mr Ellis, with the consequence that he should immediately be released.
[42] Although it was asserted that all three sections had not been complied with, it is clear that ss 169 and 170 were. The real issue arises with respect to s 171(3), which read:

Where the defendant is committed to trial or for sentence then, whether or not he is granted bail, the Court shall issue a warrant in the prescribed form for his detention in a prison pending his trial or his being brought up for sentence, as the case may be, and, if he is granted bail, the Court shall certify on the back of the warrant its consent to his being bailed, the number of sureties (if any) to be required, the sum or sums fixed, and the condition or conditions imposed:...

[43] Mr Ellis submits that the warrant Judge Keane caused to issue was in incorrect form and contained falsities. The committal form to which Mr Ellis referred us and which, he said, was a botched attempt to comply with s 171(3) was a Form 42 under the Summary Proceedings Regulations 1958. That form is headed: "Committal of Defendant to the High Court for Trial or Sentence" and is the form referred to in s 168 of the Summary Proceedings Act. The warrant referred to in s 171(3) is a different form altogether. It is Form 43 under the Summary Proceedings Regulations. It is headed: "Warrant of Commitment of Defendant committed for Trial or for Sentence". The purpose of the s 171(3) warrant (Form 43) is to direct the police to deliver the defendant to prison and to direct the prison superintendent to receive the defendant into his or her custody and to detain him pending being brought up for sentence. The actual warrant issued in this case was not before us, but it would have no bearing on the issue in any event.
[44] The SP42 form Judge Keane signed referred in its heading to s 168. Section 168 did not apply to Mr Dean’s circumstances. The problem Judge Keane faced was that there was no prescribed form for a committal under s 44(2)(a). In those circumstances, two courses were open to the District Court. One course was not to worry about a committal form at all. That would have been lawful. The High Court could simply have relied on the endorsed information, the statement of the facts of the case, and the bail bond (if any), which the District Court judge was required to cause to be sent to the registrar of the High Court. The other course was for the District Court to amend the committal form provided for a s 168 committal. That is the course Judge Keane adopted. It was open to him. He caused the form to be duly amended, by deleting the irrelevant parts of it.
[45] Mr Ellis submitted that the form Judge Keane signed contained errors. First, it said that the defendant had pleaded guilty under s 153A of the Summary Proceedings Act. That was indeed an error, as that was not the section under which the plea of guilty had been entered. That error would, however, have been readily apparent to the High Court, as Judge Keane had set out in the reasons given for declining jurisdiction the basis upon which Mr Dean found himself in the High Court for sentence. As well, the endorsements on the information also made clear the basis upon which Mr Dean had pleaded guilty and later been committed to the High Court for sentence.
[46] The other two alleged errors in the form are not errors at all. The typist who prepared the form for Judge Keane’s signature used the conventional methodology for crossing out a block of inapplicable text: the "Z" formation. The "Z" was made up of three strings of little "x"s. Obviously, the typist, in order to create the forward slash of the "Z" had to remove the sheet from the typewriter and insert it on an angle. In so doing, the typist failed to make either the top of the forward slash or the bottom of the forward slash line up exactly with the two horizontal bars of the "Z". It is quite clear, however, on any fair reading of the form, that everything within the two horizontal bars of the "Z" was deleted.
[47] Mr Ellis’s argument on this point therefore fails. A committal form was not strictly necessary at all, and certainly was not a requirement to found High Court jurisdiction. The judge’s adaptation of Form 42 was sensible in the circumstances. The one error it did contain – a reference to a wrong section number – was irrelevant. Other documentation provided at the same time did clearly set out the basis upon which Mr Dean had been committed to the High Court.

Effect of procedural error

[48] We have now dealt with all of Mr Ellis’s "procedural error" points. All fail.
[49] In these circumstances, we do not need to consider what the effect would have been had any of the procedural errors been made out.

The appropriateness of preventive detention

[50] We now come to the essential issue on the appeal. Should Mr Dean have been sentenced to preventive detention?
[51] Williamson J, when sentencing Mr Dean on 3 November 1995, described him as "a sentencing dilemma". He noted that on the one hand the offence was not a serious one of its type, but on the other that Mr Dean persisted in offending in this way despite warnings that had been given in the past.
[52] Williamson J noted that Mr Dean "had a number of convictions for indecent or other assaults on boys". He noted that the present offence had been committed just three months after Mr Dean had last been released from prison.
[53] Williamson J considered the three reports he had. The first was by a psychologist, who had referred to Mr Dean’s social problems with immaturity and who had described Mr Dean as having a limited understanding of what was involved in social relationships. The psychologist referred to Mr Dean’s inability to receive help from various groups.
[54] Next Williamson J referred to Dr Rowan’s report. He noted that Dr Rowan had concluded that, without intensive psychotherapy, the risk of Mr Dean’s pursuing "a pattern of comfort and sexual gratification was virtually certain". In other words, he had expressed the view that Mr Dean would offend again.
[55] Finally, Williamson J referred to the probation officer’s pre-sentence report. The probation officer said that, during the interview, Mr Dean had acknowledged "regular offending, certainly at a substantially higher frequency than the list of convictions indicates". The officer referred to various attempts to help Mr Dean in the past, none of which had worked. He had been on a STOP violence programme, but had been asked to leave that when he reoffended. In his last sentence of imprisonment, he had undertaken the Kia Marama programme, but had to be removed from it because his problems were affecting others in the group. His treatment progress was rated as low to moderate and he was assessed as a high risk reoffender. Upon being released in March 1995, he was required to undertake and complete psychological counselling. The psychologist made three appointments over a period of time but for a variety of reasons Mr Dean did not attend any of them.
[56] In light of all that information, Williamson J concluded that there was a substantial risk that he would commit a further offence of the indecent assault type upon release and that accordingly it was expedient for the protection of the public that he be sentenced to an indefinite term.
[57] Whether Williamson J reached the correct result must be judged in light of this court’s decision in R v Leitch [1998] 1 NZLR 420, the leading authority on the interpretation of s 75 of the Criminal Justice Act 1985. That decision was not delivered until some two years after Williamson J sentenced Mr Dean, but the offending occurred at comparable times. Mr Dean committed his offence in June 1995. Mr Leitch had committed his offences over the period September 1991 to October 1995. This court noted that the threshold under s 75(2) was that "it is expedient for the protection of the public" that the offender should be "detained in custody for a substantial period". It was noted that "expedient" is a lower threshold than "necessary". This court held that among the factors likely to be relevant under s 75(2) and (3A) were the nature of the offending, its gravity and time span; response to rehabilitation efforts; time elapsed since previous offending; steps taken to avoid reoffending; acceptance of responsibility and remorse; and predilection and proclivity for offending taking into account risk assessments.
[58] Although, of course, Williamson J did not have the benefit of this court’s analysis in Leitch, he did nonetheless approach his sentencing task, broadly speaking, as set out in Leitch. We have carefully re-evaluated the sentencing in light of Leitch and we are satisfied that Williamson J’s conclusion was not only open to him but also appropriate in all the circumstances.
[59] We consider first the nature of the offending, its gravity and time span. If the 1995 offending is considered in isolation, clearly it would not justify a sentence of preventive detention. But this offending must be put in context, the context being its place in the overall pattern of offending. We turn to consider Mr Dean’s criminal record. In this regard, we note that Mr Dean, in his pre-sentence interview with a probation officer, "acknowledged his regular offending, certainly at a substantially higher frequency than his list of convictions indicates".
[60] Mr Dean first came before the courts in 1956, on a charge of assault on a child under 14 years. We do not know the details of that. In the same year, he was also convicted on three charges of common assault. The first offending which was definitely sexually motivated occurred in 1959. On that occasion he was convicted of indecent assault on an 18 year old youth. Mr Dean had placed his hand on the youth’s private parts while seated next to him at a cinema: exactly the same as the offending in 1995.
[61] Then, just nine months later in 1960, he committed the same offence again and in exactly the same way: this time it was a young soldier whose private parts were touched in a Christchurch cinema.
[62] A little later that year, he was also convicted of assault on a child under 14 years.
[63] Mr Dean was charged with other matters in the early 1960’s: they are irrelevant for present purposes.
[64] In 1964, Mr Dean was before the court again, again charged with indecent assault, having sat next to a 15 year old youth in a cinema and having placed his hand on the youth’s private parts over his clothing.
[65] Later in 1965 and again in 1966 Mr Dean was convicted of indecent assaults on males over 16. We do not know the details of those assaults, although we do know that he was sentenced to one year’s imprisonment each time. On the second occasion, the Supreme Court judge warned Mr Dean that, if he offended again, he could expect preventive detention. That was the first preventive detention warning.
[66] In 1970, Mr Dean was before the Supreme Court again. On this occasion, he faced three charges of indecently assaulting boys under 16. There were three complainants, all aged 13 years. Mr Dean had befriended them and then brought them back to his flat. There he supplied them with alcohol and incidents involving masturbation and oral sex took place. The sexual activity was repeated on a number of occasions. It does appear that the boys were willing participants, although it is worth noting in that regard that alcohol may have influenced their participation. But in any event they were, of course, of an age where the law presumes they are entitled to protection, especially from a much older man: Mr Dean was by this stage 33 years old. Richmond J, who sentenced Mr Dean in respect of this offending, noted that Mr Dean had previously been warned about his liability to preventive detention. In the end, Richmond J decided not to impose preventive detention. He acceded to Mr Dean’s counsel’s submission that a long finite term of imprisonment had never previously been imposed. He decided to try a long finite term, which he fixed at eight years’ imprisonment. He gave this warning to Mr Dean:

It may be that a more lengthy experience in prison will give you an opportunity to form a determination to keep out of this sort of trouble, or one thing is absolutely sure, that if after you have served this sentence you come back to the Court again with anything approaching the situation that is disclosed in these depositions in this case, then I cannot conceive of any sentence except one of preventive detention being imposed on you.

[67] This was the second occasion on which Mr Dean was formally advised of the risk of preventive detention if he continued offending against under age boys.

[68] The 1970 offending is also significant in that it clearly demonstrates that Mr Dean, if given the opportunity, is more than just the "groper" Mr Ellis categorised him as being.

[69] Mr Dean sought to appeal against the sentence. This court dismissed the appeal. What is abundantly clear from Mr Dean’s application for leave to appeal, which he appears to have drafted himself, is that he had no insight at all into the harm his offending could cause to boys barely in their teens.

[70] It would seem that some time after serving that sentence of imprisonment Mr Dean went to Australia. The next known offending occurred there in 1981: two charges of gross indecency. We do not know the details.
[71] The next relevant offending of which we do know occurred in Christchurch in 1992. That was an indecent assault on a boy over 16. We do not know the details. Mr Dean was sentenced to six months’ imprisonment and ordered to take treatment on release.
[72] Almost immediately upon release, however, Mr Dean reoffended. Mr Dean sat next to a 15 year old boy on a bus and repeatedly touched the boy’s bare leg and tried to touch his groin area. Mr Dean came up for sentence before Tipping J. By this stage the Kia Marama programme was available, and Tipping J thought that it deserved a try. He sentenced Mr Dean to three years’ imprisonment on the basis that he would take part in the next intake for that programme. He concluded his sentencing remarks with the following observation: "If we [see you again], it is almost certain that the Judge then presiding would have to pass a sentence of preventive detention; so the remedy is in your hands." That was in fact the third time on which Mr Dean had been warned about the prospect of preventive detention, although Tipping J would not have been aware of that. He was aware of the 1966 warning, which was noted on Mr Dean’s criminal record, but he would not have been aware of Richmond J’s warning in 1970, which for some reason was not noted on that record.
[73] The 1995 offending occurred within a couple of months of Mr Dean’s release from prison. Tipping J’s hopes with respect to the Kia Marama programme had not been realised. The 1995 offending was just part of the pattern which had become entrenched over the past 30 years. In context, therefore, the 1995 offending was serious, because it demonstrated that all rehabilitative attempts had failed.
[74] We reject Mr Ellis’s submission that Mr Dean’s offending was no more than "nuisance" offending. It is no answer that Mr Dean does not, if his gropes are rejected, force himself on his young male victims. The law quite properly protects the young, whether male or female, from sexual advances by adults. The harm that is caused to the young from adult sexual advances can be very significant indeed. It may well be that the victim of the 1995 offending was not badly harmed: we simply do not know. But that does not mean that other victims in the future will be able to react phlegmatically to similar unwanted sexual advances. Where the facts indicate that preventive detention may be appropriate, the court’s focus is not on the impact of the present offending but rather is on whether the offending, when seen in context, demands a special reaction for the protection of society or a group within society.
[75] The next item to consider is Mr Dean’s response to rehabilitation efforts. This could only be described as poor. Mr Dean had not completed the STOP programme. In the pre-sentence report, it was recorded that "he was not committed to the programme". Mr Dean was asked to leave the Kia Marama sexual offenders’ programme because his problems were affecting others in the group. Those running the programme assessed his treatment progress on it as "low to moderate" and assessed him as being at high risk of reoffending. When Mr Dean was released from prison in March 1995, one of the special conditions of parole was that he was to undertake and complete psychological counselling. He did not keep any of the three appointments with the departmental psychologist.
[76] The time elapsed since previous offending was short. The 1995 offending with which Williamson J was dealing occurred just months after Mr Dean’s release from prison, while he was still on parole. That the reoffending occurred tends to emphasise the professional judgments previously made by those who had been attempting to assist Mr Dean’s rehabilitative efforts.
[77] Little could be said in Mr Dean’s favour with respect to steps taken to avoid reoffending. For instance, the psychologist reporting on Mr Dean’s performance in the Kia Marama programme referred to him as being "very reluctant to practise the sexual re-conditioning techniques" of the programme, although eventually he made some attempts. She said that he did not appear to fully understand the method or the importance of it.
[78] Mr Dean did not appear to exhibit much remorse. Mr Dean said in his interview with the probation officer that he was annoyed that the victim had gone to the police; he thought that reporting him was "extreme because the offence was not serious". The probation officer expressed the view that in her discussions with him, Mr Dean "appeared self-interested and had no comprehension of the damage and effect he [had] had on his recent and previous victims". She said that she did not believe he had taken any responsibility for his actions. Those views were echoed by the psychologist on the Kia Marama programme. She reported that Mr Dean "found it difficult to feel any empathy for his own victims". In fact, she reported, "he expressed anger toward them for reporting him".
[79] Mr Dean’s predilection and proclivity for offending was clear. The probation officer clearly considered there was a high risk of reoffending. So too did Dr Rowan. Dr Rowan noted that, while Mr Dean identified himself as homosexual, he was not sexually attracted to adults, a fact previously noted as well by the Kia Marama psychologist. Dr Rowan described Mr Dean’s "sexual attraction to teenage males [as] extremely resistant to change". He noted that Mr Dean had described "one of his possible scenarios for the future" as "to live in England where he [believed] the age of consent [to be] lower than in New Zealand". That gave no confidence that Mr Dean had any intention whatever of curbing his sexual interest in young teenage males. Dr Rowan concluded that only "intensive psychotherapy" held any hope for the future. Without that, Dr Rowan was of the view that it was "virtually certain" that Mr Dean would continue to pursue "his usual pattern of comfort and/or sexual gratification".
[80] Putting all those factors together, we are satisfied that Williamson J’s sentence was appropriate. It was expedient for the protection of the public that Mr Dean should be detained in custody for a substantial period; preventive detention was, in all the circumstances, the only course for the protection of the public, particularly teenaged males.
[81] We have compared the circumstances of this case with the circumstances of Leitch, where, in the end, this court held preventive detention not to be appropriate. But Mr Leitch’s prognosis was much more favourable than Mr Dean’s. Mr Leitch was a younger man with a much less entrenched pattern of sexual offending. As well, Mr Leitch had not had the advantage of engaging in the Kia Marama programme. Mr Leitch was really in the position Mr Dean was in in 1993 when he appeared before Tipping J: just as Tipping J thought that the Kia Marama programme should be tried before the ultimate sentence of preventive detention was imposed, so too this court thought it should be tried in Mr Leitch’s case. The court in Mr Leitch’s case had a psychiatric report from Dr Chaplow which, according to this court, indicated "a quite favourable prognosis for the future". Dr Chaplow had concluded that Mr Leitch had "the characteristics and apparent motivation which provide a good chance of offending-free behaviour following completion of a suitable rehabilitative programme in prison": [1998] 1 NZLR 420 at 431. There was no comparable favourable prognosis in the present case.
[82] We have also considered R v Bailey CA102/03 22 July 2003, the other New Zealand case to which Mr Ellis referred us. We agree that that case has many similarities with the present. In the end in that case, this court, while acknowledging at [9] that Mr Bailey was "a serious candidate for the sentence of preventive detention", determined that a lengthy finite sentence should be tried. The court imposed a sentence of five years’ imprisonment. But there is, we think, one very significant difference between that case and this. A telling point in Bailey was the fact that previously Mr Bailey had been sentenced to only short periods of imprisonment – the longest being 22 months. The court described his offending as having been "offensive, embarrassing and even frightening to victims" but, over the period of the offending, neither violent nor of increasing seriousness: at [20]. The court continued:

Offending at that level does not warrant the indeterminate sentence of preventive detention without first there having been a lengthy finite sentence as, in effect, a final warning and chance to address underlying problems.

[83] There then is the difference. Mr Bailey had not previously been warned about the likelihood of preventive detention. Mr Dean had been told on three occasions that he would be likely to face preventive detention if he offended in a similar manner again - in 1966, in 1970, and then in 1993. Lengthy finite sentences as, in effect, final warnings had been tried: first in 1970, and then again in 1993. The warnings had not been heeded. The chance to address underlying problems had not been taken.
[84] For these reasons, we conclude that Williamson J’s decision was correct.
[85] In approaching this appellate sentencing exercise, we have not referred at all to how Mr Dean has fared since he went to jail in 1995. That is because neither party put any information before us on that topic. Had they done so, then it may have been appropriate to take that into account, given the unusual delay in the hearing of this appeal.
[86] We also note in this regard, as previously mentioned, that Mr Dean is now eligible to apply for parole, and indeed has been so eligible since February this year.

Power to reduce sentence because defendant’s rights have been infringed

[87] Mr Ellis submitted that the sentence should be reduced from preventive detention to a finite term of imprisonment on a straightforward application of s 75 of the Criminal Justice Act, as interpreted in Leitch. But stage two of his argument was this: the court should then reduce the finite sentence still further because Mr Dean’s rights under the Bill of Rights had been infringed.
[88] Mr Ellis submitted that this court had breached s 25(b) of the Bill of Rights. That paragraph provides that everyone who is charged with an offence has, in relation to the determination of the charge, "the right to be tried without undue delay". Mr Ellis submitted that it is this court’s fault that Mr Dean’s appeal has not been heard until now. He submitted that Mr Dean is entitled to a remedy for this court’s breach and, relying on Canadian jurisprudence, that the appropriate remedy is a reduction in sentence. This argument gives rise to a number of very interesting issues. For instance:

(a) Is the 1996 appeal in this court to be treated, for these purposes, as a nullity (as Mr Ellis would submit) or merely as a flawed appeal (as Mr France would submit)?

(b) Has this court been guilty of "undue delay"?

(c) Have others, including Mr Dean and his counsel, contributed to the delay in the hearing of this appeal and, if so, what should be the consequence of that contribution?

(d) Does the court have jurisdiction to grant this remedy, given Parliamentary dictates in the Criminal Justice Act and the Sentencing Act 2002 as to how sentencing is to be approached?

(e) Even if this court has jurisdiction, is a reduction in sentence an appropriate response in circumstances where a defendant’s rights have been breached?

(f) If a breach of rights under s 25(b) can or should give rise to a reduction in sentence, should a defendant also be able to get a reduction in sentence if other rights under the Bill of Rights have been breached? (Suppose, for example, the police had obtained some evidence unlawfully, but such evidence has nonetheless been ruled admissible.)
[89] These are difficult questions, but in the end we have decided that this is not the case in which answers should be attempted. This is for three reasons.
[90] First, we have reached the same conclusion as the sentencing judge and as this court reached on the 1996 appeal. It could therefore be argued that, even if there has been a breach, no "harm" has arisen from it. Mr Dean’s position is exactly the same as it would have been had his appeal been heard "properly" in 1996.
[91] Secondly, whether a defendant’s rights have been breached is not a criterion, still less a trumping criterion, in the assessment which the court had to make under s 75 of the Criminal Justice Act and which courts must today make under s 87 of the Sentencing Act. The factors which the court today must take into account are set out in s 87(4) of the Sentencing Act. If by application of those criteria the court considers the defendant does pose a significant and ongoing risk to the safety of the community, it would not be open to the court to deny that risk and to impose a lesser sentence because of some prior breach of the defendant’s rights. That breach, if it is to be remedied, should be remedied in some other way.
[92] Thirdly, even if there has been a breach (as alleged), interfering with the sentence of preventive detention would not be the appropriate response in this particular case. Mr Dean is now eligible to apply for parole. If he applies and parole is granted, then he will be free. Our freeing him now would not provide "compensation" for the breach he alleges he suffered. If, on the other hand, parole is denied because Mr Dean still poses significant and ongoing risk, then that will simply confirm the correctness of the original sentencing decision. It would demonstrate how foolhardy it would now be to cancel preventive detention for an extraneous reason.
[93] We consider that the interesting questions this point on appeal raises are best left for a case where they may have practical consequences. An appropriate case would be one where a reduction in finite sentence was sought on the grounds of a Bill of Rights breach. In leaving open that possible argument, we are not to be taken as expressing a view one way or the other as to outcome.

The 1970 file

[94] At the hearing on 10 November, Mr Ellis submitted that Mr Dean was no more than a "groper" and a "nuisance offender". We noted on his criminal record that in 1970 he had been convicted of three charges of indecently assaulting a boy (or boys) under 16. On each charge he had been sentenced to eight years’ imprisonment (concurrent). That appeared to us to be a stern sentence, particularly given sentencing levels at that time. It certainly suggested that that offending was much more serious than mere groping.
[95] In order, therefore, to evaluate Mr Ellis’s submission, we called for the 1970 sentencing file. The file, when analysed in light of the other material already before us, demonstrated three matters:

(a) It showed that, given the opportunity, Mr Dean was much more than a mere "groper".
(b) It demonstrated that Mr Dean had been told by no fewer than three sentencing judges that, if he continued to offend against boys, he would receive preventive detention.
(c) It showed that long finite terms had been tried as an alternative to preventive detention on two occasions, without having the necessary deterrent effect on Mr Dean.

[96] Mr Ellis now submits that we had no authority to obtain these sentencing notes. That is wrong. There is clear authority under s 389(a) of the Crimes Act for this court, if it thinks it necessary or expedient in the interests of justice, to order the production of any document connected with the proceedings, the production of which appears to the court to be necessary for the determination of the case. That power has previously been liberally interpreted: R v Pora CA447/98 18 October 1999 and R v D [1996] 2 WLR 1 (CA). Even without such a statutory power, we consider that it would always be open to a sentencing court or an appellate court on review of sentence to inquire into its own records or those of another court of record in New Zealand for details of an offender’s sentencing history, if that were relevant to determining what an appropriate sentence should be or should have been: R v Riley [2001] 1 Qd R 407 (CA) at 413. The court should always disclose to counsel any materials obtained, as occurred here. In this case, we made provision for counsel to file further submissions. We also indicated that we were prepared to hear counsel orally, an opportunity Mr Ellis availed himself of.
[97] At Mr Ellis’s request, we obtained the Court of Appeal file relating to the appeal from Richmond J’s sentence. There were no reasons for judgment on that file. Mr Ellis complained about that. No doubt the absence of reasons accompanying the formal dismissal of the appeal reflected the practice of the time when appeals were not as of right. The absence of reasons does not, however, detract from the significance of the 1970 sentencing for current purposes. The purpose of our inquiry was not to determine whether the sentence imposed in 1970 was appropriate or whether this court’s dismissal of the appeal was appropriate. The significance of the 1970 offending is as set out in [94] above – and that does not hinge on what this court did. The only significance of the 1970 appeal lies in its dismissal.
[98] We reject Mr Ellis’s submission under this head.

Bail

[99] The week before the hearing, Mr Dean applied to this court for the first time for bail pending the hearing of his appeal. We are not sure why that application was filed at that late stage, particularly given that Mr Ellis said it would take a day to argue and that he was unavailable to argue it. In the end, as recorded in a minute of O’Regan J dated 5 November, counsel agreed that the appropriate course was to adjourn the application until the date on which we heard the substantive appeal. At the substantive appeal no submissions were advanced on the topic of bail. Mr Ellis accepted that it was preferable for the substantive issue in the appeal to be determined, rather than diverting the court’s attention to an application for bail for the period up to the date of the court’s decision. Obviously bail is now a dead issue, as the appeal has now been determined.
[100] For the record, however, we formally dismiss the application for bail.

Solicitors:
Crown Law Office, Wellington

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[1]	On 24 June 1995, the complainant, a 13 year old male college student, attended a movie at Coastlands cinema complex. Allan Dean, the appellant, came into the cinema and sat down beside the complainant. About 20 minutes later Mr Dean slid his right arm across and placed it lightly on the complainant’s crotch. The complainant was angry and frightened by Mr Dean’s action. He got up and moved away from him.
[2]	After the movie finished, the complainant followed Mr Dean from the theatre so that he could identify him. He gave theatre staff a description of the man who had touched him. Mr Dean returned to the cinema the following day and was recognised. The police were called. They questioned Mr Dean. He admitted attending the cinema the previous day and being sexually attracted to young males, but he denied having touched the complainant.
[3]	The police charged Mr Dean with indecent assault, contrary to s 140A of the Crimes Act 1961. Because of the issues raised in this appeal, it is necessary now to relay the procedural path the case thereafter followed.
[4]	On 31 August 1995, Mr Dean came before Judge MacLean. Mr Dean entered a plea of guilty. Judge MacLean indicated to him that the District Court was likely to decline jurisdiction with respect to sentencing. That was because Mr Dean had a number of previous charges for indecent assaults on males, both over 16 and under 16. Judge MacLean made an order under s 121(2)(b)(i) of the Criminal Justice Act 1985 committing Mr Dean to a penal institution for the purpose of psychiatric examination.
[5]	As a consequence of that order, Mr Dean was seen by Dr Edward Rowan, the Acting Director of Mental Health Services at Porirua Hospital. He prepared a report on 7 September 1995.
[6]	Mr Dean came back before the court on 21 September 1995. On that occasion, Judge Keane presided. At that hearing, Judge Keane considered, amongst other things, Dr Rowan’s report, a pre-sentence report, and Tipping J’s sentencing notes of 22 October 1993, when Tipping J was sentencing Mr Dean on a charge of indecent assault on a boy aged between 12 and 16. In a reasoned decision, Judge Keane declined jurisdiction under s 44(2)(a) of the Summary Proceedings Act 1957 and committed Mr Dean to the High Court for sentence on 6 October 1995.
[7]	In fact, Mr Dean was not sentenced in the High Court until 3 November. On that date, Williamson J determined that the appropriate sentence was preventive detention, pursuant to s 75 of the Criminal Justice Act 1985. Mr Dean was eligible for preventive detention under s 75(1)(b). But for that, the maximum penalty to which he could have been sentenced was seven years’ imprisonment.
[8]	Mr Dean sought to appeal against that sentence. Under the then practice of this court, Mr Dean’s application for legal aid was considered by three judges of this court, who recommended that it be declined. As a consequence, Mr Dean had no lawyer to pursue the appeal. The appeal was subsequently dismissed, without reasons.
[9]	Pursuant to R v Taito [2003] 3 NZLR 577 (PC) and R v Smith [2003] 3 NZLR 617 (CA), Mr Dean became entitled, on application, to a fresh hearing of his appeal. Mr Dean duly applied. We heard the appeal on 10 November 2004.
[10]	We should indicate that Mr Dean remains in prison pursuant to the sentence of preventive detention. Since February this year, Mr Dean has been entitled to apply for early consideration for parole, pursuant to the Minister of Justice’s designation of 9 February 2004: see "Designation of a class of offenders who have not yet reached their parole eligibility dates for early consideration by the board for Parole", Gazette 2004, p 417. (The maximum finite sentence to which he could have been sentenced was seven years’ imprisonment, which term has already been served in full.) Mr Ellis, Mr Dean’s counsel, advised us that no application had been made.

[11]	Mr Ellis raised a number of issues on this appeal.
[12]	The first issue was whether the maximum permissible sentence was three years’ imprisonment.
[13]	The second was whether Judge Keane’s declining of jurisdiction under s 44(2)(a) of the Summary Proceedings Act was unlawful. Mr Ellis submitted that it was for one or more of the following reasons:

[14]	The third issue raised was whether Mr Dean’s committal to the High Court was unlawful. Mr Ellis submitted that the committal form signed by Judge Keane was inappropriate and false.
[15]	The fourth issue on the appeal was raised by the Crown. Mr France, for the Crown, submitted that, even if there was some procedural error as suggested by Mr Ellis, that would not affect Williamson J’s jurisdiction to sentence Mr Dean. Mr Ellis’s submissions seem to proceed on an assumption that, if he established any of the errors delineated in the first, second and third issues, the result should be Mr Dean’s immediate release. Mr France challenged that. He submitted such errors would have no effect on the High Court’s jurisdiction. At best from Mr Dean’s point of view, it would lead to the sentencing having to be redone. So the fourth issue, assuming Mr Dean’s success on any of the first three issues, is what the effect of such success is at law.
[16]	The fifth issue is whether a different sentence should have been passed. Was preventive detention the appropriate sentence or should Mr Dean have been sentenced to a finite term of imprisonment?
[17]	The sixth issue raises an interesting point concerning the New Zealand Bill of Rights Act 1990. Mr Ellis submits that this court and its staff (the registrar) have breached Mr Dean’s rights under the Bill of Rights by failing to accord him a prompt proper appeal. Mr Ellis submits, relying on Canadian jurisprudence, that this court should remedy its breach of the Bill of Rights by reducing the sentence Mr Dean should have to serve. The question this gives rise to, assuming a breach of Mr Dean’s rights, is whether this court has jurisdiction to provide such a remedy and whether, if it has, it is appropriate to reduce Mr Dean’s sentence on that account.
[18]	After the hearing on 10 November, we decided that we would obtain from archives a sentencing file relating to offending committed by Mr Dean in 1970. We shall explain later in this judgment the reasons why we took that step. Having obtained the sentencing file, we made it available to counsel and invited submissions. Mr Ellis submitted that we had acted improperly in obtaining that file. That gives rise to the final issue on this appeal.
[19]	We shall deal with the issues in turn.

[20]	Mr Ellis submitted that the maximum permissible sentence which could have been imposed on Mr Dean was three years’ imprisonment. He advanced that submission on alternative bases.
[21]	First, he relied on s 7 of the Summary Proceedings Act. In 1995, that section began:

[23]	Section 44 is in Part 2 of the Act. The restriction on penalty imposed by s 7 accordingly does not apply where a District Court declines to deal summarily with an offence under s 44.
[24]	As an alternative, Mr Ellis submitted that the same conclusion could be reached by application of s 17A(3)(b). This argument is untenable because s 17A did not and does not apply to this proceeding. Parliament specifically provided that s 17A did not apply to proceedings commenced before 5 April 1999: see the Summary Proceedings Amendment Act 1999, s 2(2).
[25]	Both bases to this submission are unsustainable.

[28]	Mr Ellis’s second argument under this head was that the information was invalid and a nullity. This submission was made even though, at least on its face, the information was in the correct form specified by the Summary Proceedings Act: see s 15 and Second Schedule, Form 1. Notwithstanding that, Mr Ellis submitted that the information was ineffective in that it failed to specify the range of penalties available on conviction for that offence. Mr Ellis submitted that that additional requirement flowed from s 24(a) of the Bill of Rights. Under that paragraph, everyone who is charged with an offence is entitled to be informed promptly and in detail of the nature and cause of the charge. That includes, Mr Ellis submitted, details of the possible penalties. Mr Ellis cited no authority for that proposition.
[29]	We reject the submission that the information was in improper form. It is true that in 1999 the Summary Proceedings Act was amended to provide that, in certain circumstances, the information was required to disclose the range of penalties available on conviction for the offence: see s 17A, as inserted by the Summary Proceedings Amendment Act 1999, s 2(1). But that provision was not in force at the date on which Mr Dean was charged. Mr Ellis submitted that s 17A merely enacted what was already obligatory under s 24(a) of the Bill of Rights. We do not accept that submission. The information given to Mr Dean did tell him the nature and cause of the charge: he knew that he was being charged under s 140A(1)(a) of the Crimes Act with indecently assaulting a named boy (aged 13) on 24 June 1995 at Paraparaumu. And, of course, in interviewing Mr Dean before charging him, the police fleshed out the boy’s allegations against Mr Dean. There was full compliance with s 24(a) of the Bill of Rights. The information was valid. At that time, it was not a requirement of the law that the information contain details of the range of penalties available on conviction. Indeed, at that time to have included the range of penalties would have been contrary to s 15(1) of the Summary Proceedings Act.
[30]	We also note that, assuming the other grounds of attack under this head fail, this argument would also be bound to fail under s 169 of the Summary Proceedings Act (incorporated as it is by s 44(2)(a)). Under that section, "no objection on any ground whatever shall be taken to any information to which the defendant has pleaded guilty".

[33]	Mr Ellis does not dispute Judge MacLean’s jurisdiction to order Mr Dean to undergo a psychiatric examination. But, says Mr Ellis, the report produced was not by a psychiatrist. Accordingly, Judge Keane erred in considering it.
[34]	Dr Rowan saw Mr Dean on 6 September 1995 and wrote his report the following day. Mr Ellis provided to us a law report reporting a case heard by the Supreme Court of New Hampshire. The case was Appeal of Edward L Rowan, MD (New Hampshire Board of Medicine) 694 A.2d 1002 (NH 1997). According to the report, one of Dr Rowan’s former patients complained to the New Hampshire Board of Medicine about a sexual relationship she said he had had with her while she was his patient. The board requested Dr Rowan to provide certain information from his records, both as to the complaint and as to the procedures Dr Rowan had used to close his practice and refer his patients to other practitioners when he had moved to New Zealand. Dr Rowan failed or refused to supply the information sought. Eventually, Dr Rowan was called before the board, who sought to impose sanctions on him for violation of the board’s order and subpoenas. At an unspecified date after 15 September 1995, the board held that Dr Rowan had engaged in professional misconduct by not reasonably responding to the board’s enquiries and requests for documents. Dr Rowan by this date had allowed his licence to practise medicine in New Hampshire to lapse. The board suspended Dr Rowan’s privilege to apply for reinstatement of his New Hampshire licence for one year, and thereafter until he complied with the board’s request for information. Dr Rowan appealed against that decision to the Supreme Court of New Hampshire. That court, on 5 June 1997, upheld the board’s suspension. We do not know whether there was any further appeal and, if so, what the result of that was.
[35]	On the basis of what is contained in the report, Mr Ellis submitted that as at September 1995 Dr Rowan was not a psychiatrist. That is plainly wrong. Dr Rowan practised in this country pursuant to his New Zealand registration. There is no evidence before us that Dr Rowan’s New Zealand registration was at any time affected by what had happened in New Hampshire and it certainly could not have been affected as at 6 September 1995 because the board by then had made no orders against him. There is no evidence that Dr Rowan was not qualified to carry out the psychiatric examination ordered by Judge MacLean.
[36]	In any event, there was no need for there to be a psychiatric report before the court exercised its s 44(2)(a) power. It was no doubt good practice for Judge MacLean to have sought the report, but it was not an essential step in the process. Even if, therefore, Dr Rowan had not been qualified in this country to prepare a psychiatric report as at 6 September 1995, that would not have affected the validity of Judge Keane’s decision to decline jurisdiction.

[43]	Mr Ellis submits that the warrant Judge Keane caused to issue was in incorrect form and contained falsities. The committal form to which Mr Ellis referred us and which, he said, was a botched attempt to comply with s 171(3) was a Form 42 under the Summary Proceedings Regulations 1958. That form is headed: "Committal of Defendant to the High Court for Trial or Sentence" and is the form referred to in s 168 of the Summary Proceedings Act. The warrant referred to in s 171(3) is a different form altogether. It is Form 43 under the Summary Proceedings Regulations. It is headed: "Warrant of Commitment of Defendant committed for Trial or for Sentence". The purpose of the s 171(3) warrant (Form 43) is to direct the police to deliver the defendant to prison and to direct the prison superintendent to receive the defendant into his or her custody and to detain him pending being brought up for sentence. The actual warrant issued in this case was not before us, but it would have no bearing on the issue in any event.
[44]	The SP42 form Judge Keane signed referred in its heading to s 168. Section 168 did not apply to Mr Dean’s circumstances. The problem Judge Keane faced was that there was no prescribed form for a committal under s 44(2)(a). In those circumstances, two courses were open to the District Court. One course was not to worry about a committal form at all. That would have been lawful. The High Court could simply have relied on the endorsed information, the statement of the facts of the case, and the bail bond (if any), which the District Court judge was required to cause to be sent to the registrar of the High Court. The other course was for the District Court to amend the committal form provided for a s 168 committal. That is the course Judge Keane adopted. It was open to him. He caused the form to be duly amended, by deleting the irrelevant parts of it.
[45]	Mr Ellis submitted that the form Judge Keane signed contained errors. First, it said that the defendant had pleaded guilty under s 153A of the Summary Proceedings Act. That was indeed an error, as that was not the section under which the plea of guilty had been entered. That error would, however, have been readily apparent to the High Court, as Judge Keane had set out in the reasons given for declining jurisdiction the basis upon which Mr Dean found himself in the High Court for sentence. As well, the endorsements on the information also made clear the basis upon which Mr Dean had pleaded guilty and later been committed to the High Court for sentence.
[46]	The other two alleged errors in the form are not errors at all. The typist who prepared the form for Judge Keane’s signature used the conventional methodology for crossing out a block of inapplicable text: the "Z" formation. The "Z" was made up of three strings of little "x"s. Obviously, the typist, in order to create the forward slash of the "Z" had to remove the sheet from the typewriter and insert it on an angle. In so doing, the typist failed to make either the top of the forward slash or the bottom of the forward slash line up exactly with the two horizontal bars of the "Z". It is quite clear, however, on any fair reading of the form, that everything within the two horizontal bars of the "Z" was deleted.
[47]	Mr Ellis’s argument on this point therefore fails. A committal form was not strictly necessary at all, and certainly was not a requirement to found High Court jurisdiction. The judge’s adaptation of Form 42 was sensible in the circumstances. The one error it did contain – a reference to a wrong section number – was irrelevant. Other documentation provided at the same time did clearly set out the basis upon which Mr Dean had been committed to the High Court.

[48]	We have now dealt with all of Mr Ellis’s "procedural error" points. All fail.
[49]	In these circumstances, we do not need to consider what the effect would have been had any of the procedural errors been made out.

[50]	We now come to the essential issue on the appeal. Should Mr Dean have been sentenced to preventive detention?
[51]	Williamson J, when sentencing Mr Dean on 3 November 1995, described him as "a sentencing dilemma". He noted that on the one hand the offence was not a serious one of its type, but on the other that Mr Dean persisted in offending in this way despite warnings that had been given in the past.
[52]	Williamson J noted that Mr Dean "had a number of convictions for indecent or other assaults on boys". He noted that the present offence had been committed just three months after Mr Dean had last been released from prison.
[53]	Williamson J considered the three reports he had. The first was by a psychologist, who had referred to Mr Dean’s social problems with immaturity and who had described Mr Dean as having a limited understanding of what was involved in social relationships. The psychologist referred to Mr Dean’s inability to receive help from various groups.
[54]	Next Williamson J referred to Dr Rowan’s report. He noted that Dr Rowan had concluded that, without intensive psychotherapy, the risk of Mr Dean’s pursuing "a pattern of comfort and sexual gratification was virtually certain". In other words, he had expressed the view that Mr Dean would offend again.
[55]	Finally, Williamson J referred to the probation officer’s pre-sentence report. The probation officer said that, during the interview, Mr Dean had acknowledged "regular offending, certainly at a substantially higher frequency than the list of convictions indicates". The officer referred to various attempts to help Mr Dean in the past, none of which had worked. He had been on a STOP violence programme, but had been asked to leave that when he reoffended. In his last sentence of imprisonment, he had undertaken the Kia Marama programme, but had to be removed from it because his problems were affecting others in the group. His treatment progress was rated as low to moderate and he was assessed as a high risk reoffender. Upon being released in March 1995, he was required to undertake and complete psychological counselling. The psychologist made three appointments over a period of time but for a variety of reasons Mr Dean did not attend any of them.
[56]	In light of all that information, Williamson J concluded that there was a substantial risk that he would commit a further offence of the indecent assault type upon release and that accordingly it was expedient for the protection of the public that he be sentenced to an indefinite term.
[57]	Whether Williamson J reached the correct result must be judged in light of this court’s decision in R v Leitch [1998] 1 NZLR 420, the leading authority on the interpretation of s 75 of the Criminal Justice Act 1985. That decision was not delivered until some two years after Williamson J sentenced Mr Dean, but the offending occurred at comparable times. Mr Dean committed his offence in June 1995. Mr Leitch had committed his offences over the period September 1991 to October 1995. This court noted that the threshold under s 75(2) was that "it is expedient for the protection of the public" that the offender should be "detained in custody for a substantial period". It was noted that "expedient" is a lower threshold than "necessary". This court held that among the factors likely to be relevant under s 75(2) and (3A) were the nature of the offending, its gravity and time span; response to rehabilitation efforts; time elapsed since previous offending; steps taken to avoid reoffending; acceptance of responsibility and remorse; and predilection and proclivity for offending taking into account risk assessments.
[58]	Although, of course, Williamson J did not have the benefit of this court’s analysis in Leitch, he did nonetheless approach his sentencing task, broadly speaking, as set out in Leitch. We have carefully re-evaluated the sentencing in light of Leitch and we are satisfied that Williamson J’s conclusion was not only open to him but also appropriate in all the circumstances.
[59]	We consider first the nature of the offending, its gravity and time span. If the 1995 offending is considered in isolation, clearly it would not justify a sentence of preventive detention. But this offending must be put in context, the context being its place in the overall pattern of offending. We turn to consider Mr Dean’s criminal record. In this regard, we note that Mr Dean, in his pre-sentence interview with a probation officer, "acknowledged his regular offending, certainly at a substantially higher frequency than his list of convictions indicates".
[60]	Mr Dean first came before the courts in 1956, on a charge of assault on a child under 14 years. We do not know the details of that. In the same year, he was also convicted on three charges of common assault. The first offending which was definitely sexually motivated occurred in 1959. On that occasion he was convicted of indecent assault on an 18 year old youth. Mr Dean had placed his hand on the youth’s private parts while seated next to him at a cinema: exactly the same as the offending in 1995.
[61]	Then, just nine months later in 1960, he committed the same offence again and in exactly the same way: this time it was a young soldier whose private parts were touched in a Christchurch cinema.
[62]	A little later that year, he was also convicted of assault on a child under 14 years.
[63]	Mr Dean was charged with other matters in the early 1960’s: they are irrelevant for present purposes.
[64]	In 1964, Mr Dean was before the court again, again charged with indecent assault, having sat next to a 15 year old youth in a cinema and having placed his hand on the youth’s private parts over his clothing.
[65]	Later in 1965 and again in 1966 Mr Dean was convicted of indecent assaults on males over 16. We do not know the details of those assaults, although we do know that he was sentenced to one year’s imprisonment each time. On the second occasion, the Supreme Court judge warned Mr Dean that, if he offended again, he could expect preventive detention. That was the first preventive detention warning.
[66]	In 1970, Mr Dean was before the Supreme Court again. On this occasion, he faced three charges of indecently assaulting boys under 16. There were three complainants, all aged 13 years. Mr Dean had befriended them and then brought them back to his flat. There he supplied them with alcohol and incidents involving masturbation and oral sex took place. The sexual activity was repeated on a number of occasions. It does appear that the boys were willing participants, although it is worth noting in that regard that alcohol may have influenced their participation. But in any event they were, of course, of an age where the law presumes they are entitled to protection, especially from a much older man: Mr Dean was by this stage 33 years old. Richmond J, who sentenced Mr Dean in respect of this offending, noted that Mr Dean had previously been warned about his liability to preventive detention. In the end, Richmond J decided not to impose preventive detention. He acceded to Mr Dean’s counsel’s submission that a long finite term of imprisonment had never previously been imposed. He decided to try a long finite term, which he fixed at eight years’ imprisonment. He gave this warning to Mr Dean:

[70]	It would seem that some time after serving that sentence of imprisonment Mr Dean went to Australia. The next known offending occurred there in 1981: two charges of gross indecency. We do not know the details.
[71]	The next relevant offending of which we do know occurred in Christchurch in 1992. That was an indecent assault on a boy over 16. We do not know the details. Mr Dean was sentenced to six months’ imprisonment and ordered to take treatment on release.
[72]	Almost immediately upon release, however, Mr Dean reoffended. Mr Dean sat next to a 15 year old boy on a bus and repeatedly touched the boy’s bare leg and tried to touch his groin area. Mr Dean came up for sentence before Tipping J. By this stage the Kia Marama programme was available, and Tipping J thought that it deserved a try. He sentenced Mr Dean to three years’ imprisonment on the basis that he would take part in the next intake for that programme. He concluded his sentencing remarks with the following observation: "If we [see you again], it is almost certain that the Judge then presiding would have to pass a sentence of preventive detention; so the remedy is in your hands." That was in fact the third time on which Mr Dean had been warned about the prospect of preventive detention, although Tipping J would not have been aware of that. He was aware of the 1966 warning, which was noted on Mr Dean’s criminal record, but he would not have been aware of Richmond J’s warning in 1970, which for some reason was not noted on that record.
[73]	The 1995 offending occurred within a couple of months of Mr Dean’s release from prison. Tipping J’s hopes with respect to the Kia Marama programme had not been realised. The 1995 offending was just part of the pattern which had become entrenched over the past 30 years. In context, therefore, the 1995 offending was serious, because it demonstrated that all rehabilitative attempts had failed.
[74]	We reject Mr Ellis’s submission that Mr Dean’s offending was no more than "nuisance" offending. It is no answer that Mr Dean does not, if his gropes are rejected, force himself on his young male victims. The law quite properly protects the young, whether male or female, from sexual advances by adults. The harm that is caused to the young from adult sexual advances can be very significant indeed. It may well be that the victim of the 1995 offending was not badly harmed: we simply do not know. But that does not mean that other victims in the future will be able to react phlegmatically to similar unwanted sexual advances. Where the facts indicate that preventive detention may be appropriate, the court’s focus is not on the impact of the present offending but rather is on whether the offending, when seen in context, demands a special reaction for the protection of society or a group within society.
[75]	The next item to consider is Mr Dean’s response to rehabilitation efforts. This could only be described as poor. Mr Dean had not completed the STOP programme. In the pre-sentence report, it was recorded that "he was not committed to the programme". Mr Dean was asked to leave the Kia Marama sexual offenders’ programme because his problems were affecting others in the group. Those running the programme assessed his treatment progress on it as "low to moderate" and assessed him as being at high risk of reoffending. When Mr Dean was released from prison in March 1995, one of the special conditions of parole was that he was to undertake and complete psychological counselling. He did not keep any of the three appointments with the departmental psychologist.
[76]	The time elapsed since previous offending was short. The 1995 offending with which Williamson J was dealing occurred just months after Mr Dean’s release from prison, while he was still on parole. That the reoffending occurred tends to emphasise the professional judgments previously made by those who had been attempting to assist Mr Dean’s rehabilitative efforts.
[77]	Little could be said in Mr Dean’s favour with respect to steps taken to avoid reoffending. For instance, the psychologist reporting on Mr Dean’s performance in the Kia Marama programme referred to him as being "very reluctant to practise the sexual re-conditioning techniques" of the programme, although eventually he made some attempts. She said that he did not appear to fully understand the method or the importance of it.
[78]	Mr Dean did not appear to exhibit much remorse. Mr Dean said in his interview with the probation officer that he was annoyed that the victim had gone to the police; he thought that reporting him was "extreme because the offence was not serious". The probation officer expressed the view that in her discussions with him, Mr Dean "appeared self-interested and had no comprehension of the damage and effect he [had] had on his recent and previous victims". She said that she did not believe he had taken any responsibility for his actions. Those views were echoed by the psychologist on the Kia Marama programme. She reported that Mr Dean "found it difficult to feel any empathy for his own victims". In fact, she reported, "he expressed anger toward them for reporting him".
[79]	Mr Dean’s predilection and proclivity for offending was clear. The probation officer clearly considered there was a high risk of reoffending. So too did Dr Rowan. Dr Rowan noted that, while Mr Dean identified himself as homosexual, he was not sexually attracted to adults, a fact previously noted as well by the Kia Marama psychologist. Dr Rowan described Mr Dean’s "sexual attraction to teenage males [as] extremely resistant to change". He noted that Mr Dean had described "one of his possible scenarios for the future" as "to live in England where he [believed] the age of consent [to be] lower than in New Zealand". That gave no confidence that Mr Dean had any intention whatever of curbing his sexual interest in young teenage males. Dr Rowan concluded that only "intensive psychotherapy" held any hope for the future. Without that, Dr Rowan was of the view that it was "virtually certain" that Mr Dean would continue to pursue "his usual pattern of comfort and/or sexual gratification".
[80]	Putting all those factors together, we are satisfied that Williamson J’s sentence was appropriate. It was expedient for the protection of the public that Mr Dean should be detained in custody for a substantial period; preventive detention was, in all the circumstances, the only course for the protection of the public, particularly teenaged males.
[81]	We have compared the circumstances of this case with the circumstances of Leitch, where, in the end, this court held preventive detention not to be appropriate. But Mr Leitch’s prognosis was much more favourable than Mr Dean’s. Mr Leitch was a younger man with a much less entrenched pattern of sexual offending. As well, Mr Leitch had not had the advantage of engaging in the Kia Marama programme. Mr Leitch was really in the position Mr Dean was in in 1993 when he appeared before Tipping J: just as Tipping J thought that the Kia Marama programme should be tried before the ultimate sentence of preventive detention was imposed, so too this court thought it should be tried in Mr Leitch’s case. The court in Mr Leitch’s case had a psychiatric report from Dr Chaplow which, according to this court, indicated "a quite favourable prognosis for the future". Dr Chaplow had concluded that Mr Leitch had "the characteristics and apparent motivation which provide a good chance of offending-free behaviour following completion of a suitable rehabilitative programme in prison": [1998] 1 NZLR 420 at 431. There was no comparable favourable prognosis in the present case.
[82]	We have also considered R v Bailey CA102/03 22 July 2003, the other New Zealand case to which Mr Ellis referred us. We agree that that case has many similarities with the present. In the end in that case, this court, while acknowledging at [9] that Mr Bailey was "a serious candidate for the sentence of preventive detention", determined that a lengthy finite sentence should be tried. The court imposed a sentence of five years’ imprisonment. But there is, we think, one very significant difference between that case and this. A telling point in Bailey was the fact that previously Mr Bailey had been sentenced to only short periods of imprisonment – the longest being 22 months. The court described his offending as having been "offensive, embarrassing and even frightening to victims" but, over the period of the offending, neither violent nor of increasing seriousness: at [20]. The court continued:

[83]	There then is the difference. Mr Bailey had not previously been warned about the likelihood of preventive detention. Mr Dean had been told on three occasions that he would be likely to face preventive detention if he offended in a similar manner again - in 1966, in 1970, and then in 1993. Lengthy finite sentences as, in effect, final warnings had been tried: first in 1970, and then again in 1993. The warnings had not been heeded. The chance to address underlying problems had not been taken.
[84]	For these reasons, we conclude that Williamson J’s decision was correct.
[85]	In approaching this appellate sentencing exercise, we have not referred at all to how Mr Dean has fared since he went to jail in 1995. That is because neither party put any information before us on that topic. Had they done so, then it may have been appropriate to take that into account, given the unusual delay in the hearing of this appeal.
[86]	We also note in this regard, as previously mentioned, that Mr Dean is now eligible to apply for parole, and indeed has been so eligible since February this year.

(f)	If a breach of rights under s 25(b) can or should give rise to a reduction in sentence, should a defendant also be able to get a reduction in sentence if other rights under the Bill of Rights have been breached? (Suppose, for example, the police had obtained some evidence unlawfully, but such evidence has nonetheless been ruled admissible.)
[89]	These are difficult questions, but in the end we have decided that this is not the case in which answers should be attempted. This is for three reasons.
[90]	First, we have reached the same conclusion as the sentencing judge and as this court reached on the 1996 appeal. It could therefore be argued that, even if there has been a breach, no "harm" has arisen from it. Mr Dean’s position is exactly the same as it would have been had his appeal been heard "properly" in 1996.
[91]	Secondly, whether a defendant’s rights have been breached is not a criterion, still less a trumping criterion, in the assessment which the court had to make under s 75 of the Criminal Justice Act and which courts must today make under s 87 of the Sentencing Act. The factors which the court today must take into account are set out in s 87(4) of the Sentencing Act. If by application of those criteria the court considers the defendant does pose a significant and ongoing risk to the safety of the community, it would not be open to the court to deny that risk and to impose a lesser sentence because of some prior breach of the defendant’s rights. That breach, if it is to be remedied, should be remedied in some other way.
[92]	Thirdly, even if there has been a breach (as alleged), interfering with the sentence of preventive detention would not be the appropriate response in this particular case. Mr Dean is now eligible to apply for parole. If he applies and parole is granted, then he will be free. Our freeing him now would not provide "compensation" for the breach he alleges he suffered. If, on the other hand, parole is denied because Mr Dean still poses significant and ongoing risk, then that will simply confirm the correctness of the original sentencing decision. It would demonstrate how foolhardy it would now be to cancel preventive detention for an extraneous reason.
[93]	We consider that the interesting questions this point on appeal raises are best left for a case where they may have practical consequences. An appropriate case would be one where a reduction in finite sentence was sought on the grounds of a Bill of Rights breach. In leaving open that possible argument, we are not to be taken as expressing a view one way or the other as to outcome.

[96]	Mr Ellis now submits that we had no authority to obtain these sentencing notes. That is wrong. There is clear authority under s 389(a) of the Crimes Act for this court, if it thinks it necessary or expedient in the interests of justice, to order the production of any document connected with the proceedings, the production of which appears to the court to be necessary for the determination of the case. That power has previously been liberally interpreted: R v Pora CA447/98 18 October 1999 and R v D [1996] 2 WLR 1 (CA). Even without such a statutory power, we consider that it would always be open to a sentencing court or an appellate court on review of sentence to inquire into its own records or those of another court of record in New Zealand for details of an offender’s sentencing history, if that were relevant to determining what an appropriate sentence should be or should have been: R v Riley [2001] 1 Qd R 407 (CA) at 413. The court should always disclose to counsel any materials obtained, as occurred here. In this case, we made provision for counsel to file further submissions. We also indicated that we were prepared to hear counsel orally, an opportunity Mr Ellis availed himself of.
[97]	At Mr Ellis’s request, we obtained the Court of Appeal file relating to the appeal from Richmond J’s sentence. There were no reasons for judgment on that file. Mr Ellis complained about that. No doubt the absence of reasons accompanying the formal dismissal of the appeal reflected the practice of the time when appeals were not as of right. The absence of reasons does not, however, detract from the significance of the 1970 sentencing for current purposes. The purpose of our inquiry was not to determine whether the sentence imposed in 1970 was appropriate or whether this court’s dismissal of the appeal was appropriate. The significance of the 1970 offending is as set out in [94] above – and that does not hinge on what this court did. The only significance of the 1970 appeal lies in its dismissal.
[98]	We reject Mr Ellis’s submission under this head.