Hoggart v The King
[2025] NZCA 573
•31 October 2025 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA190/2025 |
| BETWEEN | MARK DEAN HOGGART |
| AND | THE KING |
| Hearing: | 9 October 2025 |
Court: | Cooke, van Bohemen and Gault JJ |
Counsel: | H G de Groot and C A Brook for Appellant |
Judgment: | 31 October 2025 at 10.00 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal out of time is granted.
BThe application for leave to adduce further evidence is granted.
C The appeal is allowed and the sentence imposed by the High Court is set aside.
D The proceedings are remitted to the High Court for resentencing.
EMr Hoggart is remanded in custody until resentencing. Any question of bail is to be determined in the High Court.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooke J)
In February 2004, Mark Hoggart was sentenced to preventive detention following his guilty pleas to three charges,[1] wounding with intent to cause grievous bodily harm,[2] threatening to kill[3] and injuring with intent to injure.[4] The offending involved serious domestic-partner-related violence. He was 19 at the time of the offending, and 20 when sentenced.
[1]R v Hoggart HC Hamilton T030376, 19 February 2004 [sentencing notes].
[2]Crimes Act 1961, s 188(1). Maximum penalty: 14 years’ imprisonment.
[3]Section 306(1)(a). Maximum penalty: seven years’ imprisonment.
[4]Section 189(2). Maximum penalty: five years’ imprisonment.
Mr Hoggart remains in prison as a consequence of this sentence. He has been released on parole on two occasions but was recalled both times.
He now seeks leave to appeal his sentence out of time. Two arguments are advanced: first, that the High Court lacked jurisdiction to impose the sentence of preventive detention, as it did not have two qualifying expert reports of the kind required before the sentence of preventive detention can be imposed;[5] and secondly, that the sentence was plainly excessive in any event.
The offending
[5]Sentencing Act 2002, s 88(1)(b).
The offending giving rise to the sentence of preventive detention was summarised by Potter J in the sentencing notes, which we adopt.
In January 2003, Mr Hoggart went to a relative’s address with his girlfriend, the first victim. They drank alcohol and then went to the bedroom to sleep. When the victim awoke and went to get a cigarette, Mr Hoggart followed her, and an argument broke out with Mr Hoggart accusing her of having sex with his mother’s partner, the male victim. He threw her against the bedroom wall, and then backwards onto a lounge chair in the bedroom. He then grabbed her and began to strangle her for about five to ten seconds before she managed to push him away. She ran from the bedroom calling loudly for help, but he grabbed her again and threw her onto the bed. He then grabbed her by the hair and banged her head against the bedroom wall four or five times, and began choking her again, demanding she admit to having sex with his mother’s partner. He threatened to kill her if she did not do so. She begged him to kill her some other way, but he said he wanted to kill her that way. She thought she was going to die. She then admitted to doing what he alleged in order to make him stop.[6]
[6]Sentencing notes, above n 1, at [5].
Mr Hoggart then got off the bed and, picking up a pair of scissors, went into the room where his mother and her partner were watching television with others. He kicked the male victim in the side of the ribs and then began punching him about the head and body. He then stabbed him with the scissors, aiming for his head, neck and upper torso. The victim blocked the blows with his hands and arms. As he tried to run away, Mr Hoggart stabbed him at the back of the head twice with the scissors. Mr Hoggart then left the scene.[7]
[7]At [6].
In sentencing Mr Hoggart to preventive detention, the Judge reached the conclusion that it was serious violent offending, and taking into account all relevant considerations, the range for a finite sentence would be seven to seven and a half years’ imprisonment.[8]
[8]At [22(e)].
In assessing preventive detention under ss 87–90 of the Sentencing Act 2002, she took into account two reports: the first from Dr Peter Dean, a psychiatrist who had assessed Mr Hoggart in a report dated 7 October 2003; and the second from Dr Pieter van Rensburg, a senior psychologist at the Department of Corrections, dated 11 December 2003, as well as the probation report. Having considered the required considerations under s 87(4) and the relevant comparable authorities,[9] she held:
[25] All the evidence and information available to me including —
· the past offending of the prisoner;
· the escalation in his violent offending, particularly the offending two months after his release on parole which has very concerning similarities to his 2001 offending with the number of victims increasing from 1 to 2;
· his apparent inability to comprehend the suffering of his victims;
· his involvement in significant alcohol and drug abuse;
· the impairment to his cognitive functions as the result of the brain injury in 2000;
· his demonstrated unwillingness or perhaps inability, to address in any consistent and constructive way the causes of his re-—
combine to satisfy me that a sentence of preventive detention should be imposed in this case for the protection of the public. I do so only after careful consideration and with reluctance, given the comparative youth of the prisoner.
[9]At [22]–[23].
Mr Hoggart remains in prison over 21 years later. He has twice been released on parole but on each occasion he has been recalled. The Parole Board decisions have been made available to us. He was first released on 17 February 2014. He subsequently formed a relationship. It appears that his partner later contacted his probation officer to say she had feared for her safety as he had become paranoid about her fidelity, and whether he was in fact the father of the baby she was carrying. A recall order was made on 12 August 2014.
Parole was later granted on 21 August 2018. An application for recall was made in October 2019 as a consequence of alleged family violence offending. Mr Hoggart subsequently pleaded guilty to a charge of male assaults female and was sentenced to nine months’ imprisonment. He was recalled by the Board by decision dated 24 August 2020 and has remained in prison since that time.
Arguments
Mr Hoggart now applies to bring an appeal against his original sentence 21 years out of time in pursuance of his right to seek leave to appeal out of time under s 388(2) of the Crimes Act 1961,[10] and the principles established by this Court for such applications set out in Kriel v R.[11] For Mr Hoggart, Mr de Groot accepts that the grounds of appeal would need to be truly compelling in order to justify leave after such a long delay. In support of the proposed appeal, he seeks leave to rely on a report from Dr Gordon Lehany addressing the adequacy of the assessments made at the time Mr Hoggart was sentenced.
[10]Per s 397 of the Criminal Procedure Act 2011.
[11]Kriel v R [2024] NZCA 45 at [79]–[82] referring to R v Knight [1998] 1 NZLR 583 (CA) at 587–589.
Mr de Groot argues that s 88 of the Sentencing Act required two reports from health assessors addressed to the likelihood of Mr Hoggart committing a further qualifying offence. It is accepted that the report from Dr van Rensburg met the criteria, but it is argued that the report from Dr Dean did not, and accordingly that there was no jurisdiction to sentence Mr Hoggart to preventive detention.
Secondly, it is argued that even if there was jurisdiction, preventive detention was the wrong sentence as a matter of principle. Although the sentence was available to violent offenders, the sentence imposed was not consistent with others imposed for violent offenders where the pattern of offending was more serious.[12] Moreover, Mr Hoggart was only 19 at the time of the offending, and his personal background and personal circumstances, including a traumatic brain injury, meant that there was strong rehabilitation potential.
[12]Citing R v McGee (1995) 13 CRNZ 108 (CA); R v Keremete HC Christchurch CRI‑2003‑009‑7263, 18 September 2003; and Carroll v R CA153/03, 18 November 2003.
The Crown opposes the grant of leave. Ms Johnston argues that no real explanation has been given for the delay in bringing the appeal, and there is a strong public interest in the finality of sentences. Pursuing an appeal 20 years out of time was inappropriate, as this Court had recently held in Kingz v R.[13] There was also prejudice to the Crown in reopening matters, including because of the fact that all the records at the time are no longer available. In terms of the proposed challenges to the sentence, she argues the report from Dr Dean was legitimately taken into account by the High Court as a second report in accordance with the approach identified by this Court in R v C (CA249/02), which allowed such reports to be used even if they had not been commissioned for the purposes of considering preventive detention.[14]
[13]Citing Kingz v R [2025] NZCA 390.
[14]Citing R v C (CA249/02) [2003] 1 NZLR 30 (CA).
The report of Dr van Rensburg showed that Mr Hoggart had been a high risk of committing further qualifying offending, and did in fact do so when he was subsequently released on parole. The Crown also opposes the application to adduce new evidence as the report from Dr Lehany does not seek to assess Mr Hoggart’s risk.
Assessment
There is considerable force in the Crown’s argument that granting leave to appeal 21 years after the original sentencing is not in the interests of justice. That is particularly so given that Mr Hoggart has not explained in any persuasive way why he did not appeal at the time. We are not prepared to accept his evidence that his original counsel failed to lodge an appeal in accordance with his instructions, given that his original counsel is now deceased.
Mr de Groot rightly accepted there would have to be a very compelling reason to now grant leave to appeal in those circumstances. But there is a significant factor to consider. That is that Mr Hoggart is the subject of the most severe sentence available short of life imprisonment without parole, in the form of preventive detention. Moreover, he was sentenced when he was only 20 years old, and he is still in prison subject to that sentence. These features need to be balanced, and the ultimate question turns on the interests of justice. As this Court initially said in R v Knight:[15]
The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interest of the individual applicant in having the conviction reviewed. Also relevant is “the respect which is traditionally shown for the liberty of the subject”.
[15]R v Knight, above n 11, at 587 (citation omitted).
Given this approach, we do not think it appropriate to grant leave to appeal simply for the purposes of reconsidering the correctness of the original sentence imposed. This would be contrary to the wider interests of society in the finality of decisions. But we consider that the applicant’s first argument — that there was no jurisdiction to impose the sentence of preventive detention — is appropriately addressed, given the need to respect the liberty of the subject, the highly restrictive nature of the sentence, and the fact that Mr Hoggart remains imprisoned under it some 21 years later. If there was no jurisdiction to impose this sentence, it would not be appropriate to allow it to stand.
Given that view, we are prepared to give leave to take into account the evidence of Dr Lehany. It is not fresh, but is directed to the question of jurisdiction, which we consider we should address. Having said that, we accept the Crown submission that that report can only be given limited weight, including because Dr Lehany did not make a full assessment of Mr Hoggart, and he does not have access to all relevant information.
Was there jurisdiction to impose preventive detention?
Whether the High Court had jurisdiction to impose the sentence of preventive detention depends on whether the Court received “reports from at least 2 appropriate health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence” under s 88(1)(b) of the Sentencing Act. This does not necessarily require that the reports be expressly commissioned for that purpose. The report can be obtained from a qualifying health assessor addressing the relevant question, even if it was commissioned for a different purpose. The position was summarised by this Court in R v C (CA249/02), prior to the sentencing in this case, in the following terms:[16]
[16] … Clearly s 88(1)(b) is intended to give the Court the assistance of two opinions concerning a vital aspect of the sentencing decision currently in hand. The legislation expects the reports to be so referenced. But in the end all that is essential is that the reports have sufficient relevance to their statutory purpose and the question to which they are directed, namely the likelihood of the offender committing a further qualifying sexual or violent offence when in a position to do so.
[17] The first report in this case, albeit directed to the parole board, contained a contemporary assessment of that very statutory question. The fact that it was written for a different purpose does not of itself mean that it did not qualify under s 88(1)(b). It will be a matter of judgment for the sentencing Court whether a report which is challenged in this respect is sufficiently related to the statutory purpose which is to have two contemporary reports directed to the likelihood of the offender committing a further qualifying offence. The problem is likely to arise mainly if there are unavoidable difficulties in obtaining two contemporary reports. That was not so here, as the appellant agreed to the use of the first report. In our view it satisfied the requirements for a qualifying report under s 88(1)(b). …
[16]R v C (CA249/02), above n 14.
We do not place particular significance on Mr de Groot’s argument that the report from Dr Dean addressed violent reoffending, and not the more particular “qualifying violent offence”. We think it reasonably apparent that he was assessing significant violent reoffending risk, and that any need to focus on qualifying offences would not likely have made any difference to the assessment. But there are other factors that raise issues about the sufficiency of the report.
Dr Dean’s report was commissioned under s 121 of the now repealed Criminal Justice Act 1985, under which a defendant could be remanded in custody for the purpose of obtaining a psychiatric report. Such a report could be ordered if the court was satisfied it would assist in determining, among other matters, the “type and length of any sentence that might be imposed”.[17] However, Dr Dean’s report was directed principally to whether Mr Hoggart had a psychiatric illness. While the report also considered whether Mr Hoggart would be at high risk of future violent offending, the report did not consider the potential sentence of preventive detention and the issues arising as a consequence.
[17]Criminal Justice Act 1985, s 121(1)(c).
In sentencing Mr Hoggart, the High Court considered that the appropriate finite sentence would be seven, or seven and a half years’ imprisonment.[18] So, the key question was whether it was necessary to impose a sentence of preventive detention to address the risk at the end of that term. But Dr Dean’s report did not squarely do so. Indeed, it acknowledged the difficulties of predicting the risk of Mr Hoggart’s future offending. His report stated:
Mr Hoggart presents with long-standing personality problems, presumably as a result of his dysfunctional early upbringing. He had behavioural problems from an early age and his offending pre-dated any brain injury. He describes some consequences of his severe and serious brain injury that include impulsivity, poor concentration and short-term memory loss. It is difficult to ascertain the contribution that each of these makes to his violent offending. However, he continues to experience aggressiveness and impulsivity. This is further contributed by his significant use of Benzodiazepines and alcohol whilst in the community.
Mr Hoggart has no symptoms of psychiatric illness. He is not receiving any psychiatric medication. It is my opinion, that he is not mentally disordered as defined by Section 2 of the Mental Health Act 1992. He does not have any psychiatric component to his offending behaviour.
The prediction of future risk is uncertain and unreliable. Mr Hoggart does not appear to have received appropriate treatment for his offending behaviour and his brain injury and whether this could reduce his risk of re-offending is uncertain. He would also need treatment for his significant substance abuse that clearly contributes to his violent behaviour. He will be in a high-risk group for further violent offending given his previous behaviour, his ongoing thoughts of aggression and lack of rehabilitation for his brain injury. His future risk may be reduced should he actively participate in drug and alcohol counselling, have appropriate brain injury rehabilitation and actively participate in psychological treatment for his offending behaviour.
[18]Sentencing notes, above n 1, at [22(e)].
The fact that the prediction of future risk was said to be “uncertain and unreliable” was a significant qualification on the opinion provided. Moreover, the opinion expressed by Dr Dean seems to us to be dependent on the rehabilitation steps that might be undertaken prior to release. No consideration was otherwise given to the risk on release from a finite sentence.
Dr Dean and Dr Ian Wilson had been involved in the psychiatric assessment of Mr Hoggart at the Regional Forensic Psychiatric Services at the Waikato District Health Board. After Dr Dean’s report had been provided, a further report was requested by the District Court. That request was responded to by Dr Wilson, who, in a letter to the Court of 22 October 2003, advised:
I understand that the court has requested a further psychiatric assessment of Mark Hoggart in order to assist the court with the decision on sentencing. As concluded in the currently available psychiatric reports, my own of 8.4.03, and that of Dr Peter Dean, Consultant Psychiatrist, dated 7.10.03 (both attached), Mr Hoggart is not suffering from mental illness. It is, therefore, unlikely that reassessment could add to the psychiatric recommendations already made to the court. Mr Hoggart does, however, have features of an antisocial personality and displays a pattern of behaviour that reflects both his personality and the consequences of the traumatic brain injury he sustained three years ago.
In my opinion, a psychological rather than a psychiatric examination would be more relevant and appropriate in these circumstances; and I, respectfully, recommend to the court that a psychologist, perhaps one employed by the Corrections Department, be instructed to carry out an assessment of Mr Hoggart.
We consider that this response was significant. The Court was being advised, at the time when a second report was being sought, presumably at a stage where preventive detention was potentially being considered, that a different assessment would be more relevant and appropriate. Given that Dr Dean had earlier qualified his advice on predicting future risk as “uncertain and unreliable”, we consider that there was an issue as to whether Dr Dean’s opinion appropriately satisfied the requirement for a second opinion under s 88(1)(b) of the Sentencing Act.
We accept that it may have remained open for the Judge to accept Dr Dean’s report as meeting the statutory requirement — as the Court said in R v C (CA249/02), this would be a matter for judgment of the sentencing Judge.[19] But the proceeding was transferred to the High Court to consider preventive detention on 19 December 2003, only after Dr Dean’s report had been obtained. There is then nothing in the sentencing notes to indicate whether the High Court considered whether Dr Dean’s report was sufficient to meet the statutory requirements. In deciding to impose the sentence of preventive detention, Potter J referred to Dr Dean’s opinion, but primarily on the basis that his report had advised that it was uncertain whether rehabilitation steps would reduce the risk.[20] When it came to addressing the information indicating a tendency to commit serious offences in the future as required by s 87(4)(c), she conducted a detailed analysis of Dr van Rensburg’s report, but made no reference to the content of Dr Dean’s views.[21] That is not surprising, given that Dr Dean had not conducted the kind of detailed analysis that would be expected from a formal risk assessment under s 88(1)(b).
[19]R v C (CA249/02), above n 14, at [17].
[20]Sentencing notes, above n 1, at [19].
[21]At [22(c)].
Given that there is no information to demonstrate that the High Court squarely considered whether Dr Dean’s report was sufficient to meet the statutory requirement, we have considered that question ourselves. In light of the issues we refer to above we do not think the report was sufficient. It might have been different if this was a clear-cut case. But it was not. The Court was being asked to consider the sentence of preventive detention for a 20‑year‑old in relation to violent offending. Important issues arose in relation to the neurological development of young persons, and also from Mr Hoggart’s significant brain injury.[22] Before the sentence of preventive detention was imposed, we consider it was appropriate for thorough risk assessments to be provided to the Court that addressed such factors. We note Dr Lehany’s evidence that the comparison group used in the risk assessment tools would be quite different from Mr Hoggart because of factors of this kind.
[22]See Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [76]–[87].
For these reasons we consider leave to appeal should be granted and the appeal should be allowed.
Appropriate disposition
We have given consideration to the appropriate disposition of this appeal given our conclusions. We have decided that the appeal should be allowed, and that the case should be remitted to the High Court for resentencing.
We are not in a position to assess whether preventive detention is the appropriate sentence. There is only one report that addresses that question, and we note that this report is subject to criticism by Dr Lehany, and that it is now out of date. Mr Hoggart is no longer a young person, and we note Dr Lehany is of the view that his brain injury will now make a small contribution to risk, if any. In the circumstances, if the Crown remains of the view that preventive detention is the appropriate sentence, we consider it necessary for there to be two new reports commissioned to address this question.
All relevant information should be taken into account for the purpose of resentencing. The Parole Board decisions record that there is further information that will likely be available for the High Court in considering whether preventive detention is the appropriate sentence. That includes reports of the rehabilitative steps Mr Hoggart has undertaken, and also the information associated with his activities in the community when he has been released and then recalled.
If the Court determines that a finite term of imprisonment is the appropriate sentence, then Mr Hoggart will be eligible for release on the basis of time served. Indeed, it may be that the prosecution and defence take no issue with a seven-and-a-half year sentence as originally indicated by Potter J. But given there is a prospect that Mr Hoggart might be subject to a finite term of imprisonment, and of his release on the basis of time served, it would be appropriate for the authorities and those assisting Mr Hoggart to give consideration to a release plan. That can be addressed at the same time as the further reports are commissioned for the purpose of resentencing, if the Crown indicates it continues to seek preventive detention.
Result
For these reasons, the application for leave to appeal out of time is granted.
The application for leave to adduce further evidence is granted.
The appeal is allowed and the sentence imposed by the High Court is set aside.
The proceedings are remitted to the High Court for resentencing.
Mr Hoggart is remanded in custody until sentencing. Any question of bail is to be determined in the High Court.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
0
3
0