RICHARD HONA v THE KING [2022] NZCA 547

RICHARD HONA v THE KING [2022] NZCA 547 [14 November 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA494/2021[2022] NZCA 547BETWEEN RICHARD HONAApplicantAND THE KINGRespondentHearing: 28 September 2022Court: Miller, Brewer and Moore JJCounsel: M J James for ApplicantM K Regan for RespondentJudgment: 14 November 2022 at 10.30 amJUDGMENT OF THE COURTThe application for leave to appeal conviction and sentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] On the day of his trial, 11 June 2019, and pursuant to a charge bargain with theCrown, Mr Hona pleaded guilty to seven charges involving violence against hispartner. The Crown withdrew, or offered no evidence on, charges of raping andotherwise sexually violating his partner.[2] On 19 August 2019, Judge Snell sentenced Mr Hona to four years and threemonths' imprisonment.1[3] Mr Hona now seeks leave to appeal both his convictions and sentence. As tothe former, he contends he entered the guilty pleas in error. As to the latter, he submitsthe sentence is manifestly excessive.[4] Mr Hona needs leave to extend the period in which he can file his notice ofappeal because he lodged it almost two years out of time. The Court's considerationof such applications is focused on the interests of justice.2 So, usually, applicationsare determined on why the delay occurred and the merits of the proposed appeal.[5] The Criminal Procedure Act 2011 provides that a notice of appeal against eitherconviction or sentence must be filed within 20 working days after the date of theconviction or sentence.3 Society has a clear interest in litigation becoming final andParliament has set what it considers a reasonable time in which to continue litigationthrough the appeal process. Parliament has also given the first appeal courts adiscretion to extend the time for filing a notice of appeal. But the courts will not doso unless there is a proper explanation for the delay, although the touchstone remainsthe interests of justice.[6] In Cheung v R, this Court gave an extension of time to file a notice of appealwhere there was an inadequately explained delay of 20 months because there was astrong interests of justice reason: a minimum period of imprisonment had beenimposed when none was justified.4 The Court considered this was a specialcircumstance justifying the extension of time.5 The Court said:6 it is necessary but not sufficient for an appellant to show that an appeal hasmerit, and when considering merit the court's starting point is that a convictionor sentence should stand if it was correct according to law at the time. Allrelevant considerations must be balanced, including the applicant'sexplanation for delay. Long delay is a major factor counting against an1 R v Hona [2019] NZDC 16360.2 R v Knight [1998] 1 NZLR 583 (CA) at 587.3 Sections 231(2) and 248(2).4 Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259.5 At [73].6 At [53], footnote omitted.applicant and ordinarily decisive if unexplained. The case for an extensionrequires evidence of special circumstances.[7] Mr Hona, in his affidavit of 21 September 2021, deposes he found it difficultto get legal advice because he was in custody. Instead, he talked to other inmates.He says he did not know about cultural reports at the time of his sentencing and, if hehad, he would have asked for one. He believes it would have affected his end sentence.[8] The Crown does not oppose an extension of time because Mr Hona is stillserving his sentence.[9] We do not accept Mr Hona's explanation adequately addresses the delay.There were many appeals filed by inmates within time during the period of Mr Hona'sdelay.[10] We will decide the application by examining the merits of Mr Hona's proposedappeals to determine whether there is a special circumstance which, on an interests ofjustice basis, requires an extension.Background[11] Mr Hona and his then partner were in an intermittent relationship for nearly10 years. It was a relationship which the Crown, aptly, characterises as tumultuous.The police have recorded 45 family harm incidents involving the two. At the time ofthe incidents of violence to which Mr Hona pleaded guilty he was on bail, theconditions of which included a ban on Mr Hona associating with, or contacting, hispartner and prohibited him from being found within a kilometre of her address.[12] The incidents of violence occurred in the period 28 September to 1 October2018. He pleaded guilty to seven charges in respect of them, namely:7(a) kidnapping;(b) assault with intent to injure (x 2);7 Mr Hona also pleaded guilty to, and was sentenced on, an unrelated charge of obtaining bydeception. That need not concern us.(c) injuring with intent to injure (x 2);(d) assault with a weapon; and(e) threatening to kill.[13] We reproduce the Crown's account of Mr Hona's offending on these charges:8 Mr Hona did the following:14.1 Kicked open the front and bedroom doors to [the complainant's]address.14.2 Threw himself on top of [the complainant] while she lay in bed, puthis hands around her throat and squeezed, restricting her breathing(Charge 2). Simultaneously, he threatened [the complainant] saying,"fuck up you fucking slut, fuck up before I kill you" (Charge 3).Releasing his hands from [the complainant's] throat, Mr Honacontinued to forcefully pin her down on the bed, "ramming" his kneeinto her chest. [The complainant] pleaded with Mr Hona, telling himhe was hurting her, but he persisted.14.3 Retrieved a kitchen knife and threatened [the complainant], saying hewould stab and kill her (Charge 4).14.4 While screaming at [the complainant], forced his elbow into hershoulder, bruising her (Charge 5).14.5 Struck [the complainant] to the face an unspecified number of times,bruising her (including her eye, and above her eye) (Charge 6).14.6 Restricted [the complainant's] movements by following her aroundthe house, abusing her, and at times forcing her to remain on her bed.Following the Friday night – when [the complainant] climbed out ofa bedroom window and ran to a neighbour's address where sheunsuccessfully sought help – he prevented her from leaving herbedroom and made her urinate in a bucket. He refused to let her eat sothat her bowels would not move (Charge 7). Mr Hona continued torestrict [the complainant's] movements during the Saturday andSunday.14.7 When one of [the complainant's] daughters arrived at the address onthe Saturday morning and questioned her mother about visible injuriesto her face and head, Mr Hona said to [the complainant] "shut the fuckup its none of their business".14.8 Returned to the address after [the complainant] had been assured by arelative it was safe to do so (Mr Hona having left). Again, he forcedhis way inside where he grabbed [the complainant] by her hair,8 Footnotes omitted.dragged her through the house to her bedroom, threw her onto her bed,and threatened to kill her once more (Charge 8).15. The offending eventually came to an end on the Monday when [thecomplainant] managed to escape from the address a second time; shesought help from a neighbour who helped her call the Police.[14] Mr Hona was also charged with raping and sexually violating the complainantduring this period.[15] Mr Hona first appeared on the charges on 5 October 2018. On 24 October2018 he entered pleas of not guilty and elected trial by jury. Mr Hona was representedby Mr Balme.[16] Mr Hona's case review hearing took place on 19 December 2018. There hadbeen discussions between Mr Balme and Crown counsel as to a possible resolution ofthe charges. Accordingly, Mr Balme asked for a sentence indication on charges 1 to 8in the Crown Charge Notice (the violence charges). This was on the understandingthat the Crown would not offer evidence on the rape and sexual violation charges ifMr Hona accepted the sentence indication.[17] A sentence indication hearing was granted. On 5 February 2019 the Crownfiled its submissions. It sought a starting point on the violence charges in the regionof four-and-a-half to five years' imprisonment.[18] Mr Balme discussed the Crown's submissions with Mr Hona. On 7 February2019, Mr Balme filed a memorandum saying that Mr Hona no longer sought asentence indication and that Mr Balme had "clear instructions" to proceed to a jurytrial.[19] The case went to trial callover and a trial date of 11 June 2019 was directed.[20] On the morning of trial the Crown confirmed it was ready to proceed.In particular, the prosecutor advised that the complainant was available to giveevidence. Mr Balme discussed the situation with Mr Hona and took instructions. As aresult, Mr Hona accepted the charge bargain offered previously and entered pleas ofguilty to the violence charges.The proposed appeal against conviction[21] Mr Hona contends:(a) He was advised by Mr Balme of the availability of the charge bargainon the morning of trial and had inadequate time to consider it properly.(b) He did not accept the summary of facts.(c) He understood that he would receive an end sentence of three years'imprisonment.[22] In his affidavit of 13 January 2022, Mr Hona deposes, relevantly:(a) He always wanted to defend the charges.(b) He was very surprised when, on the morning of trial, Mr Balme spoketo him about the charge bargain.(c) The trial was due to start at 10.00 am and so he only had about an hourto think about the charge bargain.(d) He never accepted the summary of facts.(e) He agreed to the charge bargain and signed "a piece of paper that [his]lawyer gave [him], which confirmed the plea deal". He entered thepleas in Court himself.(f) Mr Balme told him that the sentence he would get on the charge bargainwas three years' imprisonment. This was a factor which influenced hisdecision to plead guilty because he would get out of prison straightaway as he had already served a year on remand. This was Mr Balme'sadvice. Mr Balme also told him that he would be eligible for theTai Aroha programme (a residential rehabilitation course) and this wasalso a factor in his choice.(g) Mr Balme told him that he could contest the summary of facts later andthat convictions on the sexual violation charges would get a minimumof 10 years' imprisonment.(h) Another factor that influenced his decision to plead guilty wasMr Balme's advice that even if the complainant recanted in the witnessbox, "her original statement could be read out to the Court and I couldbe found guilty on her statement anyway".(i) He regrets the decision to plead guilty, and tried to raise that regret withMr Balme prior to sentencing.(j) He did not commit either the violence offences or the rape and sexualviolation offences. He has a defence to the charges:I wrote a detailed account of places visited that use CCTV;also, a description of the car that we travelled in, and the nameof the owner-driver; all in relation to a 24-hour period I hadsupposedly detained, assaulted and sexually violated thevictim. All of this coincided with my original statement madeto Police.(k) It is significant that at trial for an earlier charge of him assaulting thecomplainant she recanted her complaint. This would be persuasiveevidence for a jury.[23] Mr Hona gave evidence before us and formally confirmed the contents of hisaffidavits as true and correct.[24] Mr Hona, in evidence-in-chief, was asked about Mr Balme's adviceconcerning eligibility for the Tai Aroha programme. Mr Hona said:I understand that there was no assurances but he did bring up that and it didkind of influence me, the thought that, yeah. But, you know, look at menow, it was never ever an option really. I think it was bad advice.[25] Mr Hona also said that he had discussed with Mr Balme his wish for the juryto hear evidence of the complainant recanting her complaint of assault at a previoustrial. He said there were other similar incidents, but that Mr Balme had taken no stepsto get permission to adduce the evidence.[26] Mr Hona was cross-examined:(a) He denied that he was initially interested in pursuing the charge bargainwhen it was offered in December 2018 and that was why the sentenceindication was sought.(b) He accepted that on the morning of the sentence indication hearingMr Balme took him through the Crown's submissions on sentence.(c) He denied that it was the level of the sentence sought by the Crownwhich led him to instruct Mr Balme not to pursue the sentenceindication.(d) He denied he thought the complainant might not come to Court to giveevidence against him. He said he was glad to hear she would giveevidence because he had a firm belief she would tell the truth, as shehad in the previous case.(e) He reiterated that Mr Balme's advice (that, if the complainant recanted,the Crown could still put her statement into evidence) influenced himto accept the charge bargain.(f) He accepted that it was his decision to plead guilty.(g) He accepted that he knew that the charge bargain would not be availableto him once the trial started.(h) He also accepted that he knew he would get the advantage of the sexcharges being withdrawn.(i) He also accepted that he knew he would likely get some credit forpleading guilty.(j) He accepted that the Judge who took his guilty pleas went through eachcharge individually, summarising the facts relating to each charge.He said that he knew then he had made a mistake and felt he had beentricked.(k) He asserted that he did not challenge the facts related to each chargebecause Mr Balme had told him he could contest the summary of factslater.(l) He accepted that Mr Balme never gave an assurance of a three-yearsentence, but maintained Mr Balme had mentioned it.[27] Mr Balme also gave evidence before us. First, he formally confirmed thecontents of his affidavit of 20 April 2022 prepared for the hearing as true and correct.[28] In his affidavit, Mr Balme deposed, relevantly:(a) Mr Hona had a firm belief that the complainant would not be aco-operative Crown witness based on their history with policecomplaints.(b) On the morning of the trial he discussed with Mr Hona the litigationrisk "and the very real possibility that he would be convicted of thesexual violation charges".(c) He advised Mr Hona on this occasion, as he had previously, that thecomplainant "could potentially be referred to her statement to refreshher memory and if ruled hostile, be cross-examined on that statement".(d) He emphasised there could be a difference of as much as eight to10 years in sentence if the charge bargain was accepted as opposed tobeing found guilty of all the charges at trial.(e) There were discussions as to potential parole release and Tai Aroha wasmentioned. He gave no assurance of a three-year end sentence or thatMr Hona would be released after a third of his sentence was served.(f) Mr Hona's decision to accept the charge bargain was in accordance withMr Balme's advice.(g) Mr Hona was aware he was entering his guilty pleas on the basis of theCrown's summary of facts.(h) The decision Mr Hona made on the morning of trial was based also onadvice Mr Balme had given at earlier meetings.[29] Mr Balme was also cross-examined:(a) He said Mr Hona had a potential defence, but in Mr Balme's view theCrown's case against him was very strong. Mr Hona would have givenevidence that there was consensual sexual activity and that none of theacts of violence occurred. That would have been greatly at variancewith the evidence of the complainant and other witnesses. He wouldhave had to give an explanation as to how the complainant got herinjuries.(b) He confirmed that he did not discuss the charge bargain with Mr Honabetween the time of Mr Hona's rejection of a sentence indicationhearing and the morning of the trial.(c) He confirmed that he had more than one discussion with Mr Hona onthe morning of the trial. But what was discussed was not new ground.It had been discussed in the course of trial preparation.(d) In answer to a question about how the Crown's proposed resolutioncame up on the morning of trial, he said:Well, I said to him, look, you know, you are going to be goinginto court in however long it was, an hour or so. The Crownhave confirmed to me this morning that the offer is still on thetable. The complainant is here. You have got to assess yourlitigation risk. And that's what we focused on – his litigationrisk in the matter which, you know, to be blunt, I said to himwas high, and although he could get in the witness box downthe track and give his account, frankly I didn't think he hadmuch prospect of being believed. So that was how weproceeded.(e) He said he does not remember Mr Hona regretting his decision afterentering pleas. His dealings with Mr Hona prior to the sentencing werefocused on the sentencing process.Proposed appeal against conviction[30] Mr Hona must be permitted to appeal his convictions if we are satisfied that amiscarriage of justice has occurred. In this case, "miscarriage of justice" means anyerror, irregularity, or occurrence in, or in relation to, or affecting Mr Hona's entry ofguilty pleas that has created a real risk that the outcome of his trial was affected, orwas unfair.9[31] At the risk of oversimplifying the law, a defendant who is convicted as a resultof pleading guilty will not have their conviction overturned on appeal because theyhave come to regret their decision. That extends to regrets accumulated becauseevents post-pleas did not work out as positively as the defendant hoped or wished forwhen deciding to plead guilty.[32] In this case we are satisfied of the following matters:(a) Mr Hona was represented by experienced counsel.(b) When Mr Balme learned on the morning of the trial that the Crown'scharge bargain was still available it was his duty to tell Mr Hona thatand to advise him on the litigation risk if he did not accept it.9 Criminal Procedure Act 2011, s 232(4).(c) Mr Balme's advice was sound. The Crown's case was strong.There was ample evidence from witnesses other than the complainantgoing to the charges of violence. There was a real risk that he wouldbe convicted of the charges of rape and sexual violation. Removingthat risk was a very real factor for Mr Hona to consider. He wasinfluenced by it in choosing to plead guilty to the violence charges.(d) Mr Hona's history with the complainant led him to believe that shewould recant at trial, as she had at the previous trial. Mr Balme wasobliged to tell Mr Hona that the law permits the previous statement ofa hostile witness to be put to the witness by the party calling her, and tobe used as evidence. Mr Balme's advice was correct. This factorinfluenced Mr Hona's choice to accept the charge bargain, as well itmight.(e) Mr Hona's choice was not made in such of a rush as to be unfair.The issues had been well canvassed with him during the build-up to theproposed sentence indication hearing. Mr Hona decided not to have asentence indication hearing after learning of the sentence starting rangesought by the Crown partly because the range was unpalatable butmostly because he did not expect the complainant to follow throughwith her complaint.(f) Mr Balme discussed likely sentence outcomes with Mr Hona, whoalready knew the Crown's position. A sentence of three years wasmentioned, as was Tai Aroha. But they were possibilities andMr Balme gave no assurances. Mr Hona entered his pleas hoping thatthis would be the outcome.(g) Mr Hona entered his pleas knowing that they related to the summary offacts. He had the opportunity to seek a disputed facts hearing prior tosentencing but did not do so. He did not instruct Mr Balme to challengethe summary of facts.(h) There is no credible evidence of a tenable defence. Mr Hona said itwould be a "he said, she said" defence. But the Crown's case did notrely solely on the complainant's evidence. If Mr Hona had beenpermitted to call evidence that the complainant had recanted at theearlier trial, that would have been a double-edged sword given thehistory of his relationship with her.[33] In summary, we are satisfied that Mr Hona entered his pleas of guilty havingreceived proper advice as to the litigation risk he faced and with an adequateunderstanding of the factors going to that risk. He also understood the possibleoutcome for him.[34] We see no miscarriage of justice. There is no real risk that the outcome ofMr Hona's trial was affected by any error, irregularity, or occurrence, or was unfair.[35] Accordingly, there is no special circumstance justifying an extension of timefor filing a notice of appeal against conviction. We will not grant leave for Mr Honato appeal his convictions.Proposed appeal against sentence[36] Mr Hona contends that Judge Snell's sentence of four years and three months'imprisonment is manifestly excessive.[37] Mr Hona should be permitted to appeal his sentence if we are satisfied thatthere is an error in his sentence such that a different sentence should be imposed.A manifestly excessive sentence is such an error.The sentence[38] The Judge first set out the facts of Mr Hona's offending as contained in thesummary of facts. He noted that Mr Hona had only one previous conviction of anyrelevance and that is a conviction in 2012 for male assaults female on the samecomplainant.1010 R v Hona, above n 1, at [17].[39] The Judge said:[18] You have a long history of homelessness and alcohol dependency andyou have at times spiralled into depression. Alcohol and alcohol consumptionhave been a predominant feature in your life and that is reflected to somedegree by the other criminal convictions that you have. You described therelationship as a co-dependent relationship which is troubled with addictionissues. You say that the two of you love each other but life has been hard withboth of you on benefits, no transport and things not going your way.[19] You state that you have been grateful to the victim for giving yousomewhere to stay on occasions and you say that you will be accountable toyour marae when you are released from prison. You do a little bit of victimblaming and claim that you were introduced to methamphetamine by her, thatthe two of you would go on benders and that she was erratic and volatile whenon methamphetamine and that you try and restrain her to keep her safe andcalm.[20] The report says that you have a lack of empathy towards the victim.You are involved with victim blaming and essentially it cannot assess yourreal remorse because you were not particularly motivated to discuss theoffending. It does say that you want to try and get involved in the Tai Arohaprogramme if that became available to you to try and help you with youralcohol dependency and issues surrounding that.[21] The report says that given your reluctance to take responsibility foryour behaviour, a shift in motivation is required before any meaningful impactcan be made and it recommends a term of imprisonment. I do not have avictim impact statement.[40] The Judge adopted a starting point of four years and six months. He increasedthe starting point by six months to take into account that Mr Hona was on bail at thetime of the offending, was in breach of a bail condition not to contact the complainant,and the offending took place in her home (a further breach of a bail term). The overallstarting point was five years' imprisonment.11[41] The Judge gave Mr Hona discounts, comprising:(a) four months (seven per cent) for his difficult background andmotivation to address the causes of the offending;12 and(b) five months (eight per cent) for the last-minute pleas of guilty.1311 At [31].12 At [32].13 At [35]–[37].[42] This took the sentence to four years and three months' imprisonment.14Submissions[43] Mr Hona contends that, having regard to the totality of his offending, the Judgeshould have adopted a starting point of three years and six months to four years'imprisonment. Together with the six month uplift, with which he takes no issue, hecontends the adjusted starting point should have been four years to four years and sixmonths' imprisonment.[44] Mr Hona does not challenge the discount of five months given for his entry ofpleas on the morning of the trial. Instead, he contends that he is entitled to a greaterdiscount for his personal mitigating factors based on a s 27 report he has now obtained.We will, in the context of Mr Hona's application for leave to appeal, have regard to it.[45] Ms James submits for Mr Hona:44 It is submitted that the s 27 report shows a nexus between theappellant's upbringing and background and the offending, inparticular:a) Early exposure to violence specifically that meted out by hisfather towards [his] mother;b) Being a victim of sexual abuse;c) Issues with mental health, specifically depression;d) Alcohol dependency and drug use. At the time of theoffending, the defendant was using methamphetamine.45 It is submitted that the above factors have sufficient causativeconnection to the present offending. It is submitted that the appellant'sbackground is partly responsible for his impaired decision-makingprocess and his dependency on alcohol and drugs.[46] Ms James submits that a further discount of 15 per cent should be awarded,and an end sentence of around three years and four months' imprisonment isappropriate. Thus, she submits, the Judge's end sentence was manifestly excessive.14 At [37].[47] The Crown supports the sentence given and the Judge's reasoning. It says nogreater discount is required for the matters raised in the s 27 report.Discussion[48] The sentencing Judge took the kidnapping charge as the lead offence.The Judge noted there is no guideline decision, and that what is required is anevaluative assessment of the precise circumstances of the particular case.15 We agree.[49] The Judge had regard to decisions of this Court in R v Wharton16 andR v Hayes,17 as well as the High Court authority of R v Nevin.18 The Judge concludedthat a starting point of three years and nine months has been seen as appropriate incases of kidnapping accompanied by some violence, threats of violence and sometimesthe use of a weapon.19[50] As the Crown submits, the Judge identified the following aggravating featuresof Mr Hona's overall offending:2051.1 Actual and threatened use of violence throughout:You used violence and you threatened violence over the three days. Thisinvolved strangulation, threatening to stab, forcing an elbow into thecomplainant's shoulder, striking to the face and dragging by the hair. Thatwas accompanied by threats to kill the victim.51.2 Repeated unlawful entry into a dwelling place:You forced your way into her home, you kicked her door in and you thenwent into her bedroom and threw yourself onto her. That is how this incidentstarted. You forced your way in on a second occasion as well.51.3 Use of a weapon:You picked up a kitchen knife and you threatened to stab the victim.51.4 Psychological and physical harm to [the complainant]:15 At [26] and [28].16 R v Wharton (2003) 20 CRNZ 109 (CA).17 R v Hayes CA171/06, 20 July 2006.18 R v Nevin HC Auckland CRI-2005-004-18658, 12 September 2007.19 R v Hona, above n 1, at [26]–[27].20 This passage is taken from the Crown submissions, which in turn quote R v Hona, above n 1, at[29].There are the injuries suffered by the victim. Of course, there is thepsychological damage that this there are the injuries, but there are also theinjuries from the assaults in the various things that you did to her.[51] In our view, detailed comparison of cases is of little help where, as here, akidnapping occurred in the course of an incident involving repeated acts of violenceand which spanned several days. Our own assessment is that looking at the offendingoverall the Judge's starting point of four years and six months was well within therange available to him. It could have been higher. We note that one feature of thekidnapping was the degrading aspect of denying the complainant access to a lavatory.[52] We also consider the uplift of six months given by the Judge to account for theoffending being both while Mr Hona was on bail and in breach of two of the bailconditions was justified. Indeed, a greater increase (we would assess another threemonths) was available to account for the 2012 conviction for violence against thecomplainant. The Judge referred to this but gave no uplift.[53] The s 27 report is based on what Mr Hona told the report writer. Overall,Mr Hona had a positive upbringing. He was raised by loving parents who were bothemployed. He never suffered material deprivation or poverty. He and his siblingswere raised "within their Tikanga and their Māoridom". Mr Hona did well at all stagesof his schooling.[54] Mr Hona did report that he witnessed physical violence by his father againsthis mother, typically following the consumption of alcohol on weekends. However,there was never violence towards him.21[55] Mr Hona suffered the loss of his mother when he was 17 years old, had hisstomach removed following a cancer diagnosis when he was around 26 years old,became estranged from his family and has suffered from mental health issues(particularly, depression). He decided to become "homeless", living in a tent on ariverbank.21 Mr Hona did say to the report writer that he had been sexually abused, but he did not want to givedetails.[56] Not all of this detail was available to the sentencing Judge. But thepre-sentence report was quite comprehensive and canvassed Mr Hona's background,his periods of homelessness, his "battle" with alcohol dependency, his stomach cancerand his history of "deep depression". The Judge balanced this with Mr Hona's "victimblaming" and reluctance to take responsibility for his behaviour in reducing Mr Hona'sstarting point by four months.22[57] We consider that the s 27 report does provide a greater depth of understandingof the life history that drives Mr Hona's behaviour today than was before thesentencing Judge. We agree with the Crown that the direct causal link with offendingwhich is sometimes demonstrated by s 27 reports is not present in this case. But itcannot be said that there is no nexus between the shaping factors of Mr Hona's lifeand his offending. We would allow a 10 per cent discount (six months).[58] Adopting the Judge's overall starting point of five years' imprisonment, andhis discount of five months for the pleas of guilty, that would make the end sentencefour years and one months' imprisonment. But to disturb the Judge's sentence wouldbe tinkering. The starting point could have been higher, and the discount for the lastminute pleas of guilty, considering the palpable benefit to Mr Hona of not having toface the rape and sexual violation charges, was generous.[59] We are satisfied there is no error in Mr Hona's sentence such that a differentsentence should be imposed.[60] Accordingly, there is no special circumstance justifying an extension of timefor filing a notice of appeal against sentence. We will not grant leave for Mr Hona toappeal his sentence.22 See the Judge's comments which we quoted at [39] above.Decision[61] Mr Hona's application for leave to appeal his conviction and sentence isdeclined.Solicitors:Crown Law Office, Wellington for Respondent