Police v Honey HC Hamilton CRI 2010-419-17

[2010] NZHC 956

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-17

NEW ZEALAND POLICE

Appellant

v

K HONEY

Respondent

Hearing:         4 June 2010

Appearances: R Mann for the appellant

W Dollimore for the respondent

Judgment:      15 June 2010 at 4.30pm

JUDGMENT OF CLIFFORD J

Introduction

[1]      The respondent, Mr Honey, was sentenced in the District Court at Hamilton on 10 November 2009 to five years’ imprisonment on two charges of unlawful sexual connection with a boy under 12, and one charge of indecent assault on a boy under 12.  The Police, with the leave of the Solicitor-General, now appeal against

that sentence.

POLICE V HONEY HC HAM CRI-2010-419-17  15 June 2010

Background

[2]      From September 1998 until January 2004 Mr Honey’s victim, then aged between five and ten years, was living with his parents next door to Mr Honey’s parents.  At that time, Mr Honey was aged between 25 and 30 years.  Mr Honey’s parents and the victim’s parents socialised together.  That is how Mr Honey came into contact with the victim.

[3]      In or around 2000 Mr Honey asked the boy’s parents to allow him to go fishing, on bushwalks and swimming with Mr Honey.   At other times, Mr Honey played computer games with the victim at the victim’s home.

[4]      In October 2001, Mr Honey was present at the victim’s address during a social gathering.  The victim was seven years old and Mr Honey was about 27 years old.   Mr Honey and the victim went into the computer room.   Mr Honey told the victim that he wished to play “a little game”.  Mr Honey said that in return for the victim playing “the little game”, he would give the victim some lollies.  Mr Honey then pulled the victim’s pants down around his ankles and encouraged the victim, with the offer of lollies, to sit on his lap.  Mr Honey told the victim this was a game and as part of the game he had to sit on Mr Honey’s exposed erect penis.  Mr Honey then inserted his penis into the victim’s anus and moved in the act of intercourse for a short period without ejaculating.

[5]      Upon  hearing  movements  outside  the  computer  room  door,  Mr Honey stopped his actions and told the victim to get dressed.  Mr Honey also got dressed. The victim’s father then came into the computer room to get something from the printer.   When the victim’s father left the computer room, Mr Honey pulled the victim’s pants down a second time and started rubbing his erect penis up and down the victim’s buttocks.   After a short time, Mr Honey inserted his penis into the victim’s anus again.

[6]      Eventually, Mr Honey’s victim ran out of the room crying from the pain of the penetration.   Although he was consoled by his parents, the young boy did not inform his parents as to what had taken place.

[7]      A  few  months  later,  in  February  2002,  the  victim  went  to  Mr  Honey’s address.    Mr Honey  and  the  victim  engaged  in  a  water  fight  outside.    At  the conclusion  of  the  water  fight,  Mr Honey  and  the  victim  went  into  Mr Honey’s bathroom to dry themselves.   Upon entering the bathroom, Mr Honey said that he wanted  to  play  a  game  with  the  victim.    Mr Honey  had  the  victim  take  off Mr Honey’s belt and pull down his pants.  Mr Honey then stated that he had some lollies if the victim would suck on his penis.  Mr Honey’s victim then sucked on Mr Honey’s erect penis to the point that it penetrated his mouth to the back of his throat.

[8]      On that occasion, Mr Honey was late getting the victim back to his parents’ address.   The victim’s father called to locate the young boy and he found his son with  Mr Honey in  a  room  with  the  door  closed.    The  father’s  suspicions  were aroused, and the young boy was not allowed to have any further contact with Mr Honey.

[9]      In April 2009, the victim complained of sexual abuse to his father and later provided a full video statement of the complaint to the Police.

[10]     After that, Mr Honey went to the local Police station.  He initially offered a brief denial to the allegations but then acknowledged the offending.  He admitted a number of incidents of sexual abuse that the boy himself had not reported.  However, Mr Honey denied ejaculating into or on the victim, or masturbating the victim.  He acknowledged, however, masturbating himself after having his penis sucked by the victim.

[11]     As a result, Mr Honey faced three charges.

[12]     The first charge of sexual violation relates to the instances of anal penetration in the computer room in October 2001, which the Crown accepted was a single instance of offending.

[13]     The second, representative, charge of sexual violation relates to 12 occasions on which Mr Honey had the victim suck or kiss his penis.   These offences occurred when the boy was aged between seven and nine years old.

[14]     The third, representative, charge of indecent assault relates to four occasions where, in the computer room, Mr Henry had  the victim touch his penis.   This offending also occurred while the boy was aged between seven and nine.

Sentencing decision

[15]     In summary, the Judge arrived at her effective five year sentence for Mr

Honey in the following manner:

a)       She first, by reference to R v S,[1] R v RHA[2] and R v A,[3] and also taking into consideration R v Good,[4]  set a starting point for Mr Honey’s sentence of eight years.

[1] R v S [2007] NZCA 243.

[2] R v RHA [2007] NZCA 301.

[3] R v A [1994] 2 NZLR 129.

[4] R v Good HC Auckland CRI-2004-57-1350, 28 June 2006.

b)The Judge then identified as mitigating factors relating to Mr Honey the remorse he had shown and his previous good character.   The Judge allowed an eight month discount on sentence for those factors, resulting in a sentence of seven years and four months.

c)       The Judge then went on to consider, as a discrete matter, Mr Honey’s guilty plea.  She noted that the guilty plea was entered at the earliest opportunity, and that therefore the maximum discount possible should be given, being 33 per cent of the sentence.

[16]     This led to an end sentence of five years’ imprisonment.  That sentence was imposed on both the sexual violation charges, to be served concurrently.   A concurrent sentence of three years’ imprisonment was imposed in relation to the indecent assault charge.

4      

Appeal jurisdiction

[17]     Where a person has been sentenced in the District Court, the informant may, with the consent of the Solicitor-General, appeal the sentence to the High Court (s 115A  Summary  Proceedings  Act  1957).    Pursuant  to  s 121  of  the  Summary Proceedings Act the High Court may allow such an appeal, where, amongst other things, the High Court considers that the sentence imposed was “clearly excessive or inadequate or in appropriate”.

[18]     R v Donaldson summarises the approach to be taken where the informant appeals:[5]

[5] R v Donaldson (1997) 14 CRNZ 537 at 549–550.

It  is  established  that  a  sentence  should  not  be  increased  pursuant  to  a Solicitor-General’s appeal unless, on a review of the facts and circumstances of the case, it is clear that the sentence which was imposed is manifestly inadequate (R v Wihapi [1976] 1 NZLR 422 at 424) or the Crown is able to point to some error in principle upon which the trial Judge acted. See R v Pue [1974] 2 NZLR 392 at 392. It is also settled that considerations which justify an increase in sentence must be more compelling than those which might justify a reduction. Thus in R v Wihapi the Court held (at 424) that the considerations justifying an increase must “speak more powerfully than those which justify a reduction” and that the Court “is more reluctant to increase that it is to reduce a sentence.” Similarly in R v Beaman (16

November 1982. CA 177/82) the Court said (at 7) that it would only increase the sentence in “clear cut” cases.  Again, care must be taken to ensure that

the  Court  does  not  override  the  sentencing Judge’s  discretion  to  take  a

merciful approach or to adopt a course calculated to achieve rehabilitation, even  in  cases  which  would  normally  call  for  a  deterrent  sentence, particularly if the sentencing Judge has presided over the trial and therefore had the opportunity to see and hear the witnesses and make an assessment of the offender’s culpability...  Even if the Court determines that the sentence is manifestly inadequate or based on a wrong principle, it will still be reluctant to interfere if this would cause injustice to the offender.

...

...  At times, certainly, any deficiency or discrepancy in the sentence under appeal may be met by the Court indicating what the appropriate term of imprisonment would have been but nevertheless declining to reverse a non- custodial sentence.

[19]     That statement was recently approved by the Court of Appeal in R v Nathan.[6]

Discussion

[6] R v Nathan CA209/06, 29 November 2006 at [24].

[20]     The  grounds  of  appeal  filed  by  the  Police  were  “that  the  sentence  is manifestly  inadequate  and  the  Judge  erred  by  treating  remorse  as  a  discrete mitigating factor”.  As argued, the Police challenged the Judge’s sentencing decision on the basis that:

a)       the starting point identified by the Judge was too low;

b)the Judge erroneously gave Mr Honey credit for remorse, as well as credit for a guilty plea; and

c)       the Judge erred in giving Mr Honey full credit for his guilty plea, as that guilty plea had not been entered at the earliest available opportunity.

[21]     I  will  discuss  each  of  those  points  in  turn,  noting  the  well-established principle that what has to be established by the Police is that the end sentence is clearly inadequate or inappropriate.   If it is not, the fact that a Judge may have arrived at that sentence in some way inappropriately will not, of itself, be a sufficient ground to allow the appeal.

The starting point

[22]     In her sentencing notes, the Judge first set out the facts of the offending.  She then continued:

I accept that in terms of the offending itself, it was your statement to the police which really revealed the extent of the offending.   Had the police relied on the video interview of the complainant then the matters to which you advised the police would perhaps not have played out in their entirety as they  are  now  revealed.    But  however  it  is  looked  at,  the  offending  is extremely serious.  There is the age of the victim at the time when compared to your age.  Clearly, there was a gross breach of trust not only to the victim himself but to his family members.  There was premeditation in your actions and it was persistent.   The offending occurred over a period of some 15 months.  The effect of the victim has been devastating and was brought to

light in his adolescence.  He had now been diagnosed with Post-Traumatic

Stress Disorder.

[23]     The Judge then went on to consider what the appropriate starting point was. The Judge first noted that the Crown had submitted that a starting point of 10 to 12 years was appropriate, whilst counsel for Mr Honey argued that R v Good ought to be followed, giving a starting point of seven years.  After briefly surveying R v S, R v RHA and R v A, the Judge stated at [9] that:

The eight year tariff which was established as a starting point for defended rape cases in R v A applies to offences involving rape which is not the charge you face, but in R v RHA the Court of Appeal said that one might expect R v A to apply by analogy to sexual violation by anal intercourse.

[24]     Referring to the need to consider the particular facts of the case before her, the Judge observed that in many respects the offending in R v Good was comparable to Mr Honey’s, the greater frequency of the offending in that case being offset here because of the much younger age of the victim and “also in this case there was actual anal penetration whereas in the R v Good case there was not”.  The Judge concluded:

I have given careful thought to the starting point which is appropriate to reflect the criminality of your offending and in my view a term of eight years’ imprisonment is the appropriate starting point.

[25]     The Judge went on to consider mitigating factors.

[26]     In setting the eight year starting point, therefore, the Judge did not include any uplift to the R v A starting point with respect to aggravating factors.

[27]     The essential challenge, by the Police, to the Judge’s identification of that starting point was that she had relied inappropriately on R v Good: her reliance on that case was inappropriate because R v Good did not involve anal penetration. Furthermore, she had failed to recognise – by way of an appropriate uplift to the eight  year starting point that was appropriate  – the aggravating features of this offending which she herself had identified (see [22]).

[28]     As has recently been recognised by the Court of Appeal in the new rape and unlawful sexual connection sentencing guideline judgment – R v AM,[7] – R v A in and of itself provides comparatively little helpful guidance for identifying and reflecting aggravating  and  mitigating  factors  relating  to  offending  in  a  starting  point. Moreover, it provides comparatively little assistance in relation to sexual violation by  unlawful  sexual  connection.    This  has  been,  therefore,  a  difficult  area  for

sentencing Judges.  Moreover, it is appropriate to note that in R v AM, the Court of Appeal recognised that R v A was having an inappropriate effect in “clustering” rape sentencing starting points around the eight year mark.  R v AM identifies four bands, the least serious of which provides a starting point of six to eight years, and the most serious of which provides a starting point of 16 to 20 years.  Whilst R v AM  by its own terms does not apply to this appeal, it does illustrate the difficult nature of the sentencing exercise the Judge was dealing with.

[7] R v AM [2010] NZCA 114.

[29]     As regards Mr Honey’s offending, in my judgment R v A called for a starting point sentence of eight years on the charge of sexual violation by anal penetration before  any  consideration  of  aggravating  or  mitigating  factors  relating  to  the offending itself.  That is, and as the Court of Appeal recognised in R v AM, the R v A

starting point was not a Taueki starting point.[8]   Moreover, and in my view however

the matter is approached, Mr Honey’s offending did call for an uplift from that starting point.  First, an uplift was called for by reference to the additional offending reflected by the two representative charges Mr Honey faced.  Further, I think the age of Mr Honey’s victim, the gross breach of trust and the pre-meditation involved, the persistence of the offending and its devastating effect on the victim, are all factors that also called for an uplift.

[8] R v Taueki [2005] 3 NZLR 372.

[30]     What should that uplift have been?   Comparative cases here are of only limited assistance, particularly as most of the decisions I have been able to identify involve multiple complainants, who tend to be older than Mr Honey’s victim and where the charges involved more frequent offending and over a longer period of time than was the case here.  I have in mind such cases as R v Shelley,[9]  R v RHA itself,

[9] R v Shelley HC Hamilton CRI-1752-04, 27 September 2005.

R v Kihi,[10]  R v Bull,[11]  R v S and R v Fenemor.[12]    Having regard to those cases, and the factual patterns involved, and bearing in mind that this is a Solicitor-General’s appeal, in my judgment a starting point of at least nine years should have been adopted by the sentencing Judge.   Moreover, I think that a starting point of up to eleven years would have been within range.

Credit for remorse and good character.

[10] R v Kihi CA395/03, 19 April 2004.

[11] R v Bull CA143/04, 8 November 2005.

[12] R v Fenemor HC Auckland CRI-2004-004-023845, 8 February 2005. 

[31]    Having identified the eight year starting point, the Judge then discussed mitigating factors relating to Mr Honey.   She identified the following mitigating factors:

a)       the remorse shown by Mr Honey, not only in his guilty plea, but also in terms of a letter he had written to the sentencing Judge and the steps he had himself taken, prior to sentence, to obtain professional psychological assistance; and

b)what the Judge described as Mr Honey’s good character, reflected in that he had no relevant previous convictions and that, by the Judge’s assessment, he had been a very good employee, a good husband and a person who, by those who knew him, had been described as a person they could trust, and a good man.

[32]     The New Zealand Police challenge this aspect of the Judge’s analysis by reference to the Court of Appeal decision in R v Hessell.[13]    In their written submissions, the point was made thus:

[13] R v Hessell [2009] NZCA 450.

In turning to consider the mitigating features in this case, the learned sentencing  Judge  effectively  afforded  credit  to  the  respondent  for  his remorse twice.  This credit was given both within the credit attributed to his guilty pleas and as a discrete mitigating feature.  Such an approach is plainly contrary to the guidelines as to the appropriate credit for guilty pleas set out in R v Hessell [2009] NZCA 450, where the Court expressly observed that to

treat “genuine remorse” as a separate mitigating factor was contrary to well- established authority.[14]

In  so  doing,  the  Court  went  on  to  observe  that  “exceptional  remorse, demonstrated in a practical and material way, can attract its own reward”.[15]

However, the remorse evident in this case does not fall into that category, and was not characterised by the learned sentencing Judge as doing so.

[14] R v Hessell [2009] NZCA 450 at [24].

[15] At [28].

[33]     In Hessell, the Court discussed the question of remorse at [24] to [28].   In summary the Court determined to continue the current practice, evidenced by the well-established authority of R v Accused,[16] R v Wilson,[17] and R v Walker,[18] that non- exceptional remorse would not justify a discount discrete to that involved in pleading guilty.   The Court of Appeal thought that to do otherwise would involve every defendant who pleaded guilty also claiming to be remorseful.  It would be difficult

for sentencing Judges to gainsay such claims of remorse.   Furthermore, having a general rule that the discount for a guilty plea incorporated remorse (if any) would ensure greater predictability as to the extent of the discount.

[16] R v Accused (1997) 14 CRNZ 645.

[17] R v Wilson [2008] NZCA 496.

[18] R v Walker [2009] NZCA 56.

[34]     At  the  same  time,  the  Court  of  Appeal  acknowledged  that  exceptional remorse, demonstrated in a practical or material way, could attract its own reward. That comment also reflects the Court of Appeal’s earlier remark, as regards the justification for a reduction of sentence by reference to the guilty plea, where it said:

Thirdly it [a guilty plea] generally indicates a degree of remorse.  At the very least it represents an acceptance of responsibility for the offending.[19]

[19] R v Hessell [2009] NZCA 450 at [13].

[35]     In my judgment, the sentencing Judge was within the approach suggested by Hessell when she, in this case, provided a separate discount for remorse.  I think she can be taken as having regarded the remorse expressed by Mr Honey as exceptional. That approach is justified here by the two very practical steps Mr Honey took.  First he obtained psychological help prior to sentencing, whilst the matter was still being dealt with by the Police.  Furthermore, it was Mr Honey’s remorse, as indicated by his acceptance of responsibility for a range of offending which he himself identified, that led to a number of the representative charges he faced.

[36]     On that basis, I conclude that the Judge did not err in this instance in allowing a separate discount for remorse.

[37]     The Judge also relied on Mr Honey’s status as a first offender and a person, it would  appear,  of  otherwise  good  character.    Given  the  nature  of  Mr Honey’s offending, and that as the Crown identified it was his otherwise good character that no  doubt  induced  the  victim’s  parents  to  allow  contact  between  their  son  and Mr Honey, I am not minded to consider reliance on that matter appropriate as a mitigating factor.

[38]     I therefore conclude that allowing a period of eight months reduction for remorse and good character was overly generous.

Discount for guilty plea

[39]     The issue on appeal, as regards the 33 per cent discount the Judge allowed by reference to Mr Honey’s guilty pleas, was whether the Judge was correct to find that those pleas had been entered at the earliest opportunity.

[40]     In adopting that phraseology, it is clear that the Judge had in mind the Court of Appeal’s decision in Hessell,  as does  the fact that the Judge calculated that discount as the final step in her sentencing process.

[41]     On  the  question  of  the  entry  of  a  guilty  plea  at  the  first  reasonable opportunity, in Hessell the Court of Appeal commented as follows:[20]

[20] At [29] – [30]

The concept of having to enter a guilty plea at “the first reasonable opportunity” to attract the largest discount is not new. The first reasonable opportunity for the offender to plead guilty will generally be at his or her second appearance, as defined in paragraphs 4(b) and 5(b) of the Chief District Court Judge’s Practice Note, Committal Procedure in the District Court, dated June 2009.  By that time, initial disclosure, as due pursuant to s

12(4) of the Criminal Disclosure Act 2008, should have been made and the offender should have arranged legal representation. If either of those steps

has not taken place, the judge may be justified in considering a later time as

the first reasonable opportunity to plead guilty.

Many defendants, especially in summary cases, plead guilty on their first appearance. Nothing we say should discourage such early pleas. These defendants will be entitled to the maximum discount. Extending “first reasonable opportunity” to the second appearance will or should not cause any change of behaviour with respect to those defendants who want to make a clean breast of things at their first appearance, with a view to getting everything wrapped up on the one occasion.

[42]    The Court of Appeal went on to note that the date of “first reasonable opportunity” should not be extended on the basis that a defendant was disputing the prosecution’s summary of facts, that plea bargaining was underway or that various other pre-trial matters were at large.  The Court noted:

First reasonable opportunity means what it says. The maximum discount is appropriate only for those who are prepared to acknowledge their guilt at the outset. Those who would prefer to wait until they have full disclosure or have tested the admissibility of Crown evidence are fully entitled to stand on their rights. But they cannot expect the maximum discount if they do, as by asserting those rights they have effectively denied the State and their victims the full advantages an early guilty plea brings to them.[21]

[21] At [32]

[43]     The Court noted, in a similar vein, that whilst a defendant may be willing to plead guilty, they may nevertheless dispute aspects of the summary of facts.   The correct course in those circumstances was “to enter the plea of guilty.  The summary of facts can then be the subject of negotiation”.

[44]     Was Mr Honey’s guilty plea entered at the first reasonable opportunity?

[45]     In asserting that the Judge had been wrong to reach that conclusion, the Police’s submissions were essentially that because Mr Honey had only entered his guilty plea on  his  seventh  appearance,  he did  not  do  so  at  the  first reasonable opportunity.     The  Court  of  Appeal  held  in  Hessell  that  the  first  reasonable opportunity  would  generally  confine  the  entry  of  a  guilty  plea  to  which  the maximum discount was to be granted to the offender’s first or second appearance.

[46]     In Hessell, the Court referred to a first or second appearance in terms of the revised committal proceedings which came into force on 29 June 2009 and which are reflected in the Chief District Court Judge’s Practice Note, Criminal Procedure in the District  Court,  June  2009.    Those  procedures  did  not  apply to  Mr  Honey,  and

therefore it is necessary for me to examine the procedures that did apply, and assess their impact on the interpretation of the concept of the first reasonable opportunity for entering a guilty plea.

[47]     The previous practice note, the Preliminary Hearings Practice Note, came into force on 1 April 2008, and therefore applied to these proceedings.  That practice note  provided  that  there  was  to  be  a  first  and  second  appearance,  then  an adjournment for six weeks until a pre-depositions hearing, at which a date for the preliminary hearing would be set.  At the pre-depositions hearing, the Practice Note provided that it was expected that discovery would have occurred.  This is in contrast with the 2009 Practice Note, which provides that initial disclosure, as required under the Criminal Disclosure Act 2008, should have occurred by the time of the second appearance.  That is the context within which Hessell limited the “first reasonable opportunity”, in most cases, to the first or second appearance.   In my judgment, therefore, under the old procedures the concept of first reasonable opportunity may extend beyond the second appearance, as disclosure was not expected until the pre- depositions hearing.

[48]     This appears to have been recognised in the case law pre-Hessell though, as Hessell notes, that case law was relatively incoherent.  In R v Walker, the Court of Appeal, in considering the issue of first reasonable opportunity, stated as follows: [22]

...  This Court has not yet delivered a guideline judgment on discounts for guilty pleas, but recent decisions point to the fact that, unless there exists a good reason to the contrary, an accused can expect a 30-33% discount for a guilty plea entered at the earliest opportunity; a 25% discount for a guilty plea  entered  at  about  the  time  of  committal  for  trial  at  the  preliminary hearing; and a 10% discount where a guilty plea is given very late, say at the Court door at the commencement of trial.

[22] R v Walker [2009] NZCA 56 at [19].

[49]     In this case, Mr Honey first appeared in the District Court at Waihi, before a Community Magistrate, on 19 May 2009, the day the charges were laid.   He was remanded on bail to appear in the District Court at Waihi on 23 June 2009 “for full disclosure” (which, under the 2008 Practice Note, would be at a pre-depositions hearing).

[50]     Mr Honey next appeared on 28 May 2009, again in the District Court at Waihi, before District Court Judge Rollo.  It would appear that the purpose of that hearing was to grant a variation of bail by consent.  Whilst Mr Honey could have entered his guilty plea on that day, it would not appear that any such step was contemplated.  He was again remanded to appear in the District Court at Waihi on 23

June 2009.  He appeared on that day before a Community Magistrate.

[51]     In arguing this appeal, the Police did not establish that what is now called initial disclosure had by then been provided.   Given that Mr Honey had already discussed the victim’s complaint with the Police, and that the charges laid against him reflected Mr Honey’s own admissions, formal initial disclosure may have added little to the information Mr Honey already had.  Be that as it may, Mr Honey was remanded on that day to appear in Waihi again on 27 July 2009.   On 27 July no Community Magistrate was available and Mr Honey was again remanded by the Justices of the Peace to appear in Waihi on 4 August 2009.   On 4  August no Community Magistrate was available in Waihi, and the next day, at Mr Dollimore’s request, the matter was transferred to the District Court at Hamilton.   Mr Honey entered his guilty plea at the District Court at Hamilton on 14 August 2009, on the first day the matter would appear to have been called there.

[52]     As set out in an affidavit provided by Detective Sergeant Tinsley, the officer- in-charge, Mr Dollimore had indicated on 22 July 2009 that guilty pleas would be entered,  and  on  that  basis  no  depositions  hearing  took  place.    Moreover,  as Mr Dollimore submitted, by acknowledging his involvement in a range of offending which had not been mentioned by the complainant, Mr Honey had in fact indicated a willingness to plead guilty at a very early stage.

[53]     In my judgment, although there were in fact seven hearings, including the hearing at which Mr Honey entered his guilty plea, the Judge did not err in considering that guilty plea to be entered – in effect – at the first available opportunity.   Furthermore, the guilty plea was indicated before a pre-depositions hearing could occur, and therefore before a date for a preliminary hearing was set, at which point the discount, under the approach set out in R v Walker, would have

dropped to 25 per cent.  Therefore, the range of credit for a guilty plea would have been from 25 to 33 per cent.

[54]     In these circumstances, the Police have not persuaded me that the Judge was wrong to hold that Mr Honey entered his guilty plea at the first reasonable opportunity, and nor therefore that a full 33 per cent discount was inappropriate.

[55]     Taken overall, therefore, I accept that the Judge should have uplifted the starting point she identified to one of at least nine years.  Although I do not think the Judge was wrong in the circumstances of this case to provide a discrete discount for Mr Honey’s remorse, I think that, even in the context of a Solicitor-General’s appeal, the eight months she allowed was overly generous.  By my judgment, the maximum discount that could have been allowed was six months.  Allowing a full guilty plea credit on a sentence of eight years and six months, results in an end sentence of five years and eight months.  Comparing that to the sentence actually imposed, I do not find the sentence actually imposed was “manifestly inadequate”.   In reaching that conclusion I am influenced first by the fact that only an eight  month difference is involved.  I also bear in mind that, on a Solicitor-General’s appeal, the Court should be hesitant to intervene.

[56]     This appeal is therefore dismissed.

[57]     I make a final comment.  Where an informant appeals, with the leave of the Solicitor-General, against a sentence and, in terms of R v Hessell, raises a factual issue as to whether a plea was correctly characterised as having been entered at the first available opportunity, I think the appellant should provide the Court in some appropriate manner with a factual chronology setting out the basis upon which it makes that assertion.  It would also be appropriate for that chronology to have been provided to the respondent, so that any areas of disputed fact can be identified.  Here, whilst the appellant did provide the Court with the affidavit from the responsible Police  officer  involved  in  Mr Honey  entering  his  guilty  plea,  it  was  left  to Mr Dollimore to endeavour to explain to the Court the various entries on the CRIs which  recorded  Mr Honey’s  different  appearances.    That  is  not  an  especially

efficient manner for that important issue, in terms of the Court of Appeal’s judgment in Hessell, to be put before an appellate Court.

“Clifford J”

Solicitors:   The Crown Solicitor, Hamilton for the appellant ([email protected])

D M Stuart, P O Box 114, Waihi (Counsel: W N Dollimore, P O Box 19115, Hamilton)