ARONA & CHAMBERS v R [2018] NZCA 427

ARONA & CHAMBERS v R [2018] NZCA 427 [12 October 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA104/2018[2018] NZCA 427BETWEEN MARK ARONAAppellantAND THE QUEENRespondentCA255/2018BETWEEN PETER JOHN CHAMBERSAppellantAND THE QUEENRespondentHearing: 30 August 2018Court: Miller, Mallon and Gendall JJCounsel: N M Dutch for Appellant Arona (CA104/2018)C G Tuck and TDA Harre for Appellant Chambers (CA255/2018)S K Barr for RespondentJudgment: 12 October 2018 at 11.30 amJUDGMENT OF THE COURTA Mr Chambers' application for an extension of time to appeal is granted.B Mr Arona's appeals against conviction and sentence are dismissed.C Mr Chambers' appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] The appellants were convicted after trial of sexually violating a woman on19 October 2017. Mr Chambers was convicted of raping her, and Mr Arona ofunlawful sexual connection by penile penetration of her mouth. Each was furtherconvicted as a party to the other's offence. The Crown case was that she was so grosslyintoxicated as to be incapable of consent. The defence case was that she was notgrossly intoxicated and participated willingly. The men were each sentenced to eightand a half years' imprisonment.1[2] Both men appeal against conviction. They say that they ought to have beenable to lead evidence of the complainant's behaviour with other men on anotheroccasion, because that explained her allegation on this occasion that she wasintoxicated. Mr Chambers abandoned an allegation of trial counsel error.[3] Mr Arona also appeals his sentence, saying that penile penetration of the mouthis intrinsically less serious than rape. He also says that the sentencing Judge failed togive weight to a cultural report tendered under s 27 of the Sentencing Act 2002.[4] Mr Chambers' appeal is out of time. His counsel explained that he could notfile the appeal in time because he was investigating an allegation of trial counselconduct, which this Court explained in R v Clode could help justify a delay.2 In theabsence of Crown opposition we accept the explanation and grant the necessaryapplication for an extension of time.The facts[5] The appellants work in the dance music industry as disc jockeys and promoters.Their preferred genre is hip-hop. The complainant was on friendly terms with themand had once worked with Mr Arona. At Mr Arona's invitation, she attended a concertin which they performed on 21 May 2016.1 R v Arona [2018] NZDC 1608.2 R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at [30].[6] After the concert she and the appellants, with others, returned to the appellants'hotel. A considerable amount of alcohol was consumed during the evening and shehad one puff of a cannabis "blunt" which was described in evidence as being aroundthe size of a cigar. The Crown case was that the complainant was not a regularcannabis user and she was badly affected by the combined intoxicants, unable to movebut able to hear and feel some things around her.[7] The following narrative rests on the findings made by the trial Judge atsentencing. The complainant found herself in one of the hotel rooms with no clotheson, face down into a pillow and her hips pulled up. She heard Mr Chambers say "I'vewanted this pussy for a long time." He was having vaginal intercourse and she coulddo nothing about it. He was also heard to say "Look what I can do to her bro and she'snot even flinching." This appears to be a reference to Mr Chambers putting his fingerin her anus. She heard Mr Arona say "Good girl."[8] She was manhandled onto her back, where Mr Chambers had sex with her inthe missionary position and Mr Arona was putting his erect penis into her mouth.He pushed his penis in so far that she was unable to breathe, causing her to dry retchand vomit. He was heard to say words to the effect that he liked it when she made thatchoking sound. He was holding her head and she heard "Cum on her face." He didejaculate on her face and stomach. Mr Chambers ejaculated into her vagina.[9] When she woke in the morning at 8.00 am she was naked. Mr Chambers waslying next to her in bed and Mr Arona was asleep on the second bed in the room.She had her period and found that the tampon she had inserted the night before wasgone. She dressed and accepted a ride home from Mr Chambers.[10] Over succeeding days the complainant messaged Mr Arona and Mr Chambersabout what had happened. She began by saying that she was piecing memories of theevening together. She asked what had happened after she "smoked that thing" andsaid that she was "grounded again". She spoke of having flashbacks of two guys andsaid she had woken naked. She accused them of taking advantage of her intoxicatedstate. Initially the men admitted nothing, but they then admitted that they both hadsexual relations with her but said that she was an active participant. Calls between herand each of the men were recorded. Notably, Mr Arona acknowledged that there hadbeen a "threesome", that she had smoked the blunt and that she was "wasted".There was also evidence that the men had conferred with one another about what tosay to her.[11] Both men gave evidence at trial. Their account at trial was that the complainanthad initiated oral sex with Mr Arona when Mr Chambers briefly left the room andcontinued when he returned, and then later initiated consensual sex with Mr Chamberswhen the two awoke in the morning. The jury verdict on party liability indicates thatthey rejected this account. The men both accepted that she vomited in a bucket.The s 44 application[12] Before trial the appellants moved for leave to adduce evidence ofthe complainant's sexual experience with other men. Her behaviour on that unrelatedoccasion was said to be strikingly similar to this one. The evidence is that of anotherwoman, M, who says that she and the complainant went to a hotel room after a concertin 2015 and there the complainant had sex with two men after consuming alcohol andcannabis. Next morning the complainant told M that she felt a little embarrassed.She messaged a friend who had evidently been there, apologising for being "way toodrunk", saying she was "trying to piece the night together" and could not "remembera whole lot" after being at a bar. She did not complain of sexual assault.[13] The appellants proposed to lead evidence that the complaint's behaviour afterthe 2015 incident went to her veracity on this occasion. Their theory was thatthe complainant is a woman who is prone to participate in group sex then experienceshame and blame intoxication afterward.[14] Judge Mabey dismissed the application, reasoning that the 2015 text messageswent to the complainant's veracity but were not substantially helpful; further, theiradmission would necessarily require that evidence be led of her sexual experience withother men on that occasion:33 R v Arona [2017] NZDC 21789.[19] It is a serious stretch of that text messaging to suggest that it actuallysupports a contention that she is lying somehow to justify what went on thenight before. It might be that she was not drunk and can piece the nighttogether. It might be that [the female witness] is on the money when she saysthat everyone was sober and having a thoroughly good time, but to introducethe text messages in support of a contention that they are untrue and thereforethe Facebook messaging is untrue in support of a consent defence is notsubstantially helpful under the veracity rules. In any event to get the textmessaging in there would have to be evidence of prior sexual conduct withother men. The heightened relevance test would have to be satisfied and it isnot by a very long margin.The case for admissibility of the 2015 incident[15] Mr Dutch, who appeared for Mr Arona, led this part of the argument forthe appellants. He argued that Judge Mabey was wrong in his veracity reasoning; andfurther, that circumstances changed at trial. Armed with Judge Mabey's ruling,the Crown was able to and did lead unchallenged evidence on three matters:(a) First, evidence was led to explain what the complainant meant whenshe told Mr Arona before the 2016 incident that after "last time I wentto your tour I grounded myself for a year." This was a reference,the appellants say, to her grounding herself after the 2015 incident.She referred to it again the day after the encounter with the appellants,asking in a Facebook message what happened after she "smoked thatthing" and adding "I'm grounded again". In evidence she explained the2015 incident by saying that "we had a really fun all-nighter."(b) Secondly, evidence that she was unused to cannabis, though she hadconsumed it during the 2015 incident, and so was affected by the smallamount she smoked during the 2016 incident.(c) Thirdly, evidence that she was "not a one-night stand kind of girl".This last statement was made during a recorded phone conversation withMr Chambers. The Crown did not seek leave under s 44 of the Evidence Act 2006 tolead this evidence. As the Judge noted, the defence evidently chose not to seek to haveit ruled out in advance either.4 The evidence having come in, the trial Judge ruled thatdefence counsel could not cross-examine in rebuttal under s 44(4).5 Counsel did notinvite the Judge to give the jury any directions about it and it was not mentioned again.[16] The appellants' case is that the 2015 incident went to veracity.The complainant's behaviour after that occasion showed that she lied about hercapacity to consent. The evidence ought to have been led to rebut the otherwise naturalinference that she would not willingly engage in group sex on this occasion.[17] The appellants do not argue for the general proposition that a previous groupencounter can go to the reasonable belief in consent of other men on another occasion.They say rather that she did consent and participated actively in sex but now regrets itand is blaming intoxication. They submit that the 2015 incident went directly to thetrial issue (capacity to consent) here and they ought to have been permitted to exploitits close nexus to the allegations against them. Specifically:(a) the facts of the 2015 incident were strikingly similar, pointing to apropensity to have group sex then regret it and blame intoxication;(b) the defence was precluded from exploring what the complainant meantby being grounded "again"; and(c) the complainant was permitted to give evidence that she was unused tocannabis, which supported her claim that she had become grosslyintoxicated, and she could not be challenged by reference to herprevious admission in 2015.[18] The Crown's response is that the 2015 evidence is not probative at all, andcertainly not to the heightened standard required by s 44. There is nothing in the 2015evidence to suggest that she was lying on that occasion; she did not say that the sexwas non-consensual or complain about the men involved; her behaviour is consistentwith her simply being embarrassed. On this occasion she complained the next day,4 R v Arona [2017] NZDC 23252 at [2].5 At [3].saying she must have blacked out and was getting flashbacks. The "grounded again"comment points naturally to having drunk to excess on a previous occasion but saysnothing about sex, and the complainant did not say she never used cannabis, nor wasthe defence precluded from asking about that. The defence did ask her about howmuch she had had to drink. The "not a one-night stand kind of girl" comment wasmade in response to Mr Chambers asking whether she positively gave consent whenshe had sex with other men. The Crown did not suggest that group sex wasintrinsically abnormal in the appellants' world. Ultimately, no miscarriage can haveresulted. The recorded conversations between the men, and between them and thecomplainant, show they knew she was intoxicated to the point of memory loss.The test[19] In Best v R, the Supreme Court explained how courts should respond toattempts to use allegedly false prior complaints by complainants in trials for sexualoffending.6 The starting point is that evidence of consent to previous unrelated sexualactivity is unlikely to provide any logical support for a suggestion that a complainantconsented to the sexual activity at issue (and indeed, as William Young J noted inB (SC12/2013) v R, likely fails the s 7 relevance test).7 The evidence must have somemeaningful and direct bearing on the issues at trial.8[20] If, as in this case, it is alleged that sexual activity took place on the prioroccasion, then both ss 37 and 44 of the Evidence Act 2006 are engaged. The personseeking to adduce the evidence must satisfy the judge that the evidence is substantiallyhelpful for purposes of s 37. Where the proposition is that a previous false complaintgoes to veracity, there would need to be an evidential foundation suggesting possiblefalsehood.96 Best v R [2016] NZSC 122, [2017] 1 NZLR 186.7 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [122(c)]. See also Morton v R[2013] NZCA 667 at [107] and [109].8 See for example Leighton v R [2013] NZCA 102, (2013) 26 CRNZ 187.9 Best v R, above n 6, at [64].[21] Substantial helpfulness also depends on how clear it is that the previouscomplaint was false and how easily that might be established. The more evidenceneeded the more likely that what will result is a "trial within a trial".10[22] Evidence that would be admissible under s 37 is not necessarily admissibleunder s 44, which sets a broader test and expresses it in stronger language:[66] where evidence is held to be admissible under the heightenedrelevance test under s 37, this would not automatically mean that it would beof "such direct relevance to the facts in issue" that it would be "contrary to theinterests of justice to exclude it" in terms of s 44(3). Section 37 has aheightened relevance test but the "substantial helpfulness" is assessed inrelation to a person's veracity. The s 44 test is conversely broadly directed tothe trial as a whole and in stronger terms. Whether the s 44 test is met willhave to be separately considered in the context of the case as a whole and inlight of the policy behind s 44.[23] Further, the policy behind s 44 may lead the court to limit the ambit of anyevidence admitted under s 37 and s 44.11Was the 2015 incident admissible?[24] We accept that M's evidence and the 2015 messages together have somebearing on the complainant's veracity. M's evidence is to the effect thatthe complainant engaged in consensual sex and admitted being embarrassed about it,and the messages indicated that she may have been excusing herself to a friend whowas there at the time by claiming to have been more intoxicated than she was.[25] We do not accept, however, that the evidence is substantially helpful unders 37. The 2015 evidence is not sufficiently probative of the proposition that she liedabout being intoxicated on this occasion. There is an essential distinction; assumingshe did have group sex in 2015, she did not claim that it was non-consensual despitebeing embarrassed about it. There is nothing in the 2015 messages to that effect.[26] Further, it is not clear that the complainant did lie about her condition in 2015.The argument rests on M's evidence about her condition. It can be expected that, if10 At [72]–[74].11 At [67].the evidence was admitted, then there would be a dispute as to how intoxicatedthe complainant was, necessitating further evidence and cross-examination on thecircumstances of the 2015 incident.[27] Nor do we accept that in the absence of the 2015 evidence the jury were leftwith an incomplete and unfair picture. The circumstances of the alleged offending didnot require that the jury be given a fuller account of her statements that she hadpreviously grounded herself and was grounded again. These statements did not invitethe jury to draw adverse inferences against the appellants. They do suggest that sheregretted her behaviour in some way, but the obvious explanation is that she felt shehad drunk too much.[28] Even if we had found the evidence substantially helpful, it would not meet theheightened standard imposed by s 44(1). Section 44(1) is engaged because theevidence would necessarily include M's account that the complainant had sex withother men on another occasion. Counsel did not suggest that it would have beenpossible to limit the ambit of the evidence to her intoxication. Mr Dutch argued ratherthat the sexual evidence was essential to explain the point about intoxication.This leads us to note that his submissions make plain that the appellants also want toshow that she has a propensity to engage casually in group sex. That is plainlyillegitimate.12[29] For these reasons we conclude that evidence that the complainant had sex withother men in 2015 and later spoke of being too drunk on that occasion was notadmissible at trial.The cannabis evidence[30] As noted, the complainant asked in her communications with the appellantswhat happened after she smoked cannabis the evening before. Mr Dutch submittedthat, at trial, the Crown submitted it was the cannabis that incapacitated her, althoughshe had had at least ten drinks by her own admission. He made two distinct pointsabout this:12 Morton v R, above n 7, at [107] and [109].(a) this evidence justified admission of her sexual behaviour with othermen in the 2015 incident because, in the 2016 incident, the complainanthad only a puff of a cannabis cigarette and the Crown case was that shewas not familiar with the drug, but M's evidence was that she smokedit on the evening of the 2015 incident; and(b) the prosecutor misused an agreed s 9 statement about the effects ofcannabis by suggesting it showed she might have lost her cognition andmotor faculties for a time but then recovered sufficiently to recall whathappened to her.[31] The principal evidence about the cannabis was that of Steven Koopu, who wasat the concert and accompanied a group including the appellants and the complainantto the appellants' hotel. He explained that he was smoking a blunt, which is cannabisin a cigar-like casing. There is no evidence that the blunt contained any other drug.He saw the complainant smoke from it once. The complainant herself said that shetook a "toke" from it and immediately felt nauseous and faint, and fell back. In oneof the calls with Mr Arona afterward she said that she does not smoke. She was notasked in cross-examination whether she had smoked cannabis previously.[32] The s 9 statement recorded that:26. Cannabis cannot easily be classified as a sedative or stimulant since itcan have different effects in different people and its effects generallyvary over time. Its main psychological and behavioural effects areeuphoria and relaxation, an impairment of perception and cognition,and loss of motor coordination. The extent to which an individualexperiences all or any of these psychological or behavioural effects isdependent on a range of factors.27. Tetrahydrocannabinol (THC) is the active constituent of cannabis.Blood THC levels produced by smoking a cannabis cigarette and therate at which the levels decrease vary widely between individuals andare dependent on a number of factors. These factors include frequencyof use, smoking technique and experience, and the size and potency ofthe cannabis cigarette.28. Subjective symptoms of cannabis intoxication usually peak 10 to15 minutes after smoking cannabis and last about 1.5 to 4 hours.[33] In closing the prosecutor made the following statements to the jury about thecomplainant's use of cannabis:Going back to the blunt. It was clearly the marijuana that looked like a cigarthat we now know is called a blunt, that caused her to be incapacitated.We know from the section 9 admissions on the toxicology that cannabis cancause the impairment of cognition and a loss of motor coordination and weknow the symptoms of cannabis usually peak around 10 to 15 minutes aftersmoking cannabis and last for anywhere between 1.5 to four hours.That's paragraph 26 to 28 in the admission document.This is relevant as to the initial effects of the drug smoked by someone whowouldn't ordinarily smoke it and it is relevant to the implausibility of her thenbeing able to be cognisant of what occurred immediately thereafter and overthe period Elijah Neblett said the room was shut up while what we understood,what he understood was a threesome had occurred.So what I'm saying, ladies and gentleman, is that even at that time when she'sfalling backwards and she has that immediate effect what the admissiondocument from the toxicology tells you is that it is unlikely that she wouldthen become cognisant, that her motor coordination would come back and thatshe would have that, a regain of her cognition. Because the peak from the useof cannabis occurs 10 minutes to 15 minutes after the use. So if that's hereffect at the beginning there is a peak of the effects of the cannabis around the10 to 15 minute mark and the effects remain for another hour and a half tofour hours thereafter.[34] The short answer to Mr Dutch's first submission is that s 44 did not stand inthe way of the complainant being cross-examined about prior cannabis use andcontradicted if she denied ever having used it. Evidence of her cannabis use at thetime of the 2015 incident could have been led without also adducing evidence ofsexual experience with other men. It was not done. Mr Dutch did not suggest that thisomission in itself caused a miscarriage.[35] So far as the second submission is concerned, we accept Mr Barr's submissionthat the prosecutor made permissible use of the statement, which established that theeffects of cannabis vary with the person, and the complainant's evidence that thecannabis caused her to be incapacitated. Mr Arona's counsel made suggestions to thecontrary, saying there was no evidence that a puff of cannabis could have the effectthat she claimed.The "not that kind of girl" statement[36] This evidence also went to the admissibility of the 2015 incident. Mr Dutchsubmitted that the Crown was permitted to lead evidence that the complainant was nota one-night stand kind of girl but the defence was not permitted to show that she hadengaged in a one-night stand with two men in 2015.[37] We consider that the Judge was correct to refuse counsel permission tointroduce the 2015 incident in response to this evidence. As noted, she made thestatement during a phone call with Mr Chambers. She said it in response to anevidently unintentional implication from Mr Chambers that she was promiscuous.It was not led by the Crown at trial to show that a one-night stand was out of characterfor her.[38] We do accept that the statement was inadmissible and ought to have beenexcised from the audio recording of the call that was played to the jury, along with thequestion from Mr Chambers that elicited her response. That having been overlooked,however, the proper course was not to allow the defence to explore the 2015 incident.The proper course was to instruct the jury to ignore the evidence. This was not done.Counsel did not ask and the Judge evidently did not think it necessary. As noted, itwas not mentioned again during the trial. This point indicates that the evidence didnot assume the significance at trial that it is now said to have.Other matters[39] Mr Dutch complained that the Crown made unfair use of phone records.[40] The context is that a call between the complainant and Mr Arona was left outof the schedule of calls and messages produced at trial. The complainant deposed toan angry call from one of the appellants at a specific time and Mr Arona's counsel usedthe schedule in cross-examination to show that no call was recorded at that time.In re-examination the prosecutor had her produce a schedule disclosing the omittedcall, which was from Mr Arona.[41] Mr Arona was cross-examined in an attempt to show that he knew thatthe complainant's evidence about the call was correct but nonetheless instructed hiscounsel to put it to her that she had made it up. Mr Dutch submitted that thecross-examination was improper.[42] We do not consider that anything turns on this. Speaking generally, it was notwrong to question Mr Arona about the narrative that counsel had put to thecomplainant on his behalf. In this case it would have been better had the prosecutornot done so. The omission of the call from the schedule was due to an error bythe police. But Mr Arona said that he had no idea his lawyer was going to challengethe complainant about the call, and there the matter was left.Conclusion: no miscarriage of justice[43] We are satisfied that evidence of the complainant's sexual experience withother men in the 2015 incident was inadmissible and leave to adduce evidence of itwas properly refused pre-trial. Although the incident was mentioned generally at trial,it was not used in such a way as to justify adducing the evidence of M about theincident. The trial was fair.[44] Generally, we are satisfied that there has been no miscarriage of justice.The Crown had a strong case. The evidence of calls and messages after the incidenttended to confirm the complainant's account and show that the appellants knew shewas in no condition to consent to sex.Mr Arona's sentence appeal[45] Judge Cameron found that the offending, for both men, fell into rape band twofrom R v AM (CA27/2009).13 Aggravating factors were vulnerability and an elementof breach of trust, the two offenders, and emotional harm to the victim. He adopted astarting point of eight and a half years' imprisonment for the rape. The oral sexualviolation warranted an uplift of 12 months. He reduced the sentence by 10 per centfor previous good character. There was no remorse or any other mitigating factor.13 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [98]–[104].The sentences imposed were seven and a half years' imprisonment for the rape(Mr Chambers as principal and Mr Arona as party) with a cumulative 12 months forthe oral sexual violation.14[46] The Judge noted that a s 27 report had been provided for Mr Arona, who isCook Islands Māori. He stated that:15I have read that and taken it into account to the extent that I can. I commentthat to a large extent it focuses on the defendants denying that there wasnon-consensual activity with the victim and so in that respect it is of littleassistance. It does highlight the success of both of the defendants in the musicindustry, including Mark Arona's many community-based initiatives to helpyoung people in a variety of ways such as promoting them as musicians.Offending not intrinsically less serious[47] Mr Arona's first ground of appeal was that the starting point was too high.He ought to have been placed in the unlawful sexual connection bands, at the bottomof band two or top of band one. The appropriate sentence was four years for the oralsexual violation with an uplift of three years for being party to the rape.[48] We do not accept this submission. We make two points about it. First, it isbased on the premise that penile penetration of the mouth is less serious than rape.As Mr Barr submitted, that is not how the AM bands were constructed. The rape bandsapply to penile penetration of the mouth or anus.16 Second, both men were involvedin all of the offending. In our opinion the Judge was right to find them equallyculpable.[49] We consider the sentence was well within the available range for thisoffending. There were two offenders. They took advantage of an intoxicated woman.The degree of violation found by the Judge and summarised at [7]–[8] above wasserious.14 R v Arona, above n 1, at [23] and [31]–[35].15 At [19].16 R v AM (CA27/2009), above n 13, at [65].The s 27 report[50] Mr Dutch submitted that while the Judge relied on the report for details ofMr Arona's work helping others in the music industry he did not otherwise considerMr Arona's cultural background in a meaningful way. It ought to have reduced hisculpability. The Court ought to have taken into account the over-representation ofMāori and Pasifika people in the criminal justice system.[51] We turn to the report itself. It was prepared by Laurence and Denis O'Reilly,whose practice is called Matau Cultural Annotators. It was prepared for bothappellants. As noted, Mr Arona is of Cook Islands Māori descent. His mother is fromAitutaki and his father from Rakahanga Manahiki. He is of the Takitimu waka and heaffiliates to Ngati Taane ki Rarotonga. Mr Chambers is of mixed Māori and Pākehādescent but identifies as Māori. As he has not appealed his sentence, we focus on whatthe report has to say about Mr Arona.[52] The report begins by noting the systemic over-representation of Māori in ourcriminal justice system.17 It states that Māori are four to five times as likely to beapprehended, prosecuted and convicted than non-Māori, and that Māori are seventimes more likely to receive a custodial sentence upon conviction than non-Māori.This is reflected in substantial losses of wairua for Māori that "cannot be measured"and which have "resulted in significant psychological trauma".[53] However, the report does not offer those systemic institutional failings as adirect explanation for Mr Arona's offending. Rather, it attributes the offending to adifferent cultural context, that of "the sub-culture called hip hop." It suggests thatthrough hip hop disenfranchised and alienated Māori cope with the traumas justidentified, and that in consequence the boundaries "between right and wrong havebecome blurred for these two young men".[54] We observe in passing that when the report was written Mr Arona was aged 40and Mr Chambers 46.17 See the comprehensive discussion in Solicitor-General v Heta [2018] NZHC 2453 at [40]–[42].[55] Just what this blurring of boundaries means is expanded upon in the rest of thereport. The authors explain that aspects of hip hop culture might be seen as"misogynistic and offensive". The authors quote men who are a part of that culture:It's a known thing "sex or drugs". The girls follow where the gear is. Neitherparty is innocent. It's an unspoken thing.But you know that is the environment and its nothing we can do. We just tryto avoid. We do avoid as much as possible. There is plenty of offerings ofmultiple types of drugs. But like I said I don't do drugs. I'm very much afamily man. But I'm also human so when someone is offering to give youoral sex, um, I felt, yeah.Men think with their cocks — I did that night. I allowed that to happen.(Footnotes omitted.)The last two paragraphs quoted were from an interview between the report writers andMr Arona himself.[56] The report goes on to suggest that what occurred between the appellants andthe complainant is reflective of "a polyamorous lifestyle" which is normal in theindustry. It contrasts the Crown narrative at trial with the appellants' explanations ofwhat happened:The complainant is placed somewhere on a continuum between, at one end,as the prosecutor put it, a "rag doll", affected by alcohol and cannabis, and, atthe other end, as advanced by the then defendants, a seductress ready toengage sexually with the two stars of the show she has attended.The prisoners contend that the complainant has experienced a form of"buyer's remorse" fuelled by a mix of bitterness about not being cast in afurther hip hop video and a psychological "neediness".[57] Finally, the report ends with a commentary on the #metoo movement:The pendulum of public opinion has swung from "looking the other way" toa witch hunt state where any male in the entertainment industry is fair gamefor accusation.The counter narrative is mild by comparison. However, there are voices thatcall for less hype and more balance.[58] We agree with the Judge's observation that the report rests largely onthe appellants' denials. Their claims that the incident was consensual and normal inthe music industry were positively unhelpful, pointing to absence of bothunderstanding and remorse. The Judge was right to discount these comments to theextent they were incompatible with the jury verdicts and contrary to his own findingsof fact. They also convey the impression that the authors see their role as that ofadvocates for the appellants, which detracts from the authority of such a report.[59] Apart from its failure to acknowledge that the appellants actually committedthe offences, the report does not establish a nexus between Mr Arona's culturalbackground and the offending that might mitigate his culpability.18 As recentlyexplained in Solicitor-General v Heta, s 27 rests on the premise that systemicdeprivation affecting Māori generally is traceable to linkages between that deprivation,the offender and the offending.19 There may be cases in which the linkage appearsself-evidently from the circumstances of the offence and the offender. This is not oneof those cases. Some evidence, not necessarily elaborate, was needed to establish theconnection.20[60] We will assume in the report's favour, for present purposes only and expresslywithout deciding, that hip-hop is a sub-culture that objectifies women and so is capableof explaining conduct of this kind. But as Mr Barr submitted, this report does notshow that Mr Arona's offending is attributable to systemic social deprivationexperienced by Māori. Indeed, it makes no attempt to do so. It is not apparent that hewas affected by deprivation or that, if he was, deprivation led him to hip-hop.[61] The last point to be made about the report is that sentencing for some offencesmay be dominated by considerations such as denunciation, victim impact andcommunity protection, reducing and perhaps eliminating any discount for culpabilityon cultural grounds.21 In this case a woman made vulnerable by gross intoxicationwas sexually violated by two men in an especially callous and degrading way.Those features of the offending must inevitably dominate sentencing.[62] We note for completeness that the report also identifies a number of personalmitigating factors, such as the efforts that Mr Arona has made to help other musicians18 Fane v R [2015] NZCA 561 at [46].19 Solicitor-General v Heta, above n 17, at [49].20 At [50].21 At [57]. See for example R v Rakuraku [2014] NZHC 3270; and R v Eruera [2016] NZHC 532.in their careers. In this respect the report was valuable. We need not go into what itsays about these factors since the Judge did take them into account by giving a10 per cent discount for good character and Mr Arona did not criticise his decision inthat respect.Result[63] Mr Chambers' application for an extension of time to appeal is granted.[64] Mr Arona's appeals against conviction and sentence are dismissed.[65] Mr Chambers' appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent