IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA193/2019
 [2019] NZCA 618

	
BETWEEN	
JOHNSON MAHANGA NAPIA
Applicant	
	
AND	
THE QUEEN 
Respondent	

Court:	
Clifford, Ellis and Peters JJ	

Counsel:	
A E Ngapo-Lipscombe for Applicant 
J M Irwin for Respondent 	

Judgment:
(On the papers)	
5 December 2019 at 10 am	

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against sentence is declined.  
____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)
[1]	The applicant, Mr Napia, seeks leave to bring a second appeal against sentence.  We may grant leave only if satisfied the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.  
Background 
[2]	In April 2018, Mr Napia pleaded guilty to 15 charges of, amongst other things, injuring, wounding, burglary and aggravated burglary.  Mr Napia committed the first offence in August 2017 and the balance over three days/nights in December 2017.  For present purposes it is not necessary to describe the offending in any detail.  It suffices to note that it involved, amongst other things, acts of significant violence against elderly and vulnerable relatives in their homes during the early hours of the morning.  Mr Napia was aged 19 and intoxicated on alcohol and drugs at the time of the offending. 
[3]	Judge Hollister-Jones sentenced Mr Napia in October 2018.  The Judge adopted a starting point for the offending of 10 years, six months’ imprisonment, which he then increased by six months for Mr Napia’s prior convictions and because Mr Napia committed the December 2017 offending whilst on bail for the August 2017 offending.  The Judge then made deductions totalling 45 per cent for mitigating factors, and gave a further 25 per cent deduction for Mr Napia’s guilty pleas.  Mr Napia’s end sentence was four years, six months’ imprisonment.  
First appeal 
[4]	The Solicitor-General appealed to the High Court on the ground the sentence was manifestly inadequate.  Lang J was required to allow the appeal if satisfied there was an error in the sentence imposed and that a different sentence should be imposed.  
[5]	Lang J was satisfied the Judge had erred in two respects.  First, Lang J accepted the Solicitor-General’s submission that the Judge had erred in determining the starting point.  Lang J corrected the error, and increased the starting point to 11 years, six months’ imprisonment.  The six-month uplift for prior convictions and offending whilst on bail was left in place, and so the sentence prior to deductions for mitigating factors was 12 years’ imprisonment.
[6]	Mr Napia does not dispute that the Judge made the error concerned, or that Lang J’s increased starting point was a proper one.    
[7]	Secondly, the deductions the District Court Judge made for mitigating factors included 10 per cent for youth, five per cent each for Mr Napia’s remorse and rehabilitative prospects, and a further 25 per cent on the ground that there was a “significant causal connection” between Mr Napia’s deprived background on the one hand and his offending on the other.  Matters pertaining to Mr Napia’s background had been put before the Court in a report provided pursuant to s 27 of the Sentencing Act 2002 (s 27 report and s 27 factors).  
[8]	On appeal, the Solicitor-General submitted to Lang J that the Judge’s combined discount of 45 per cent was manifestly excessive; that no more than 20 per cent ought to have been given for remorse, prospects of rehabilitation and s 27 factors; and that no more than 10 per cent could be justified for the s 27 factors alone.  
[9]	Having considered the facts of the offending and the contents of the s 27 report, Lang J was satisfied the causal connection the Judge had identified, referred to in [7] above, existed.  However, Lang J was also satisfied the 35 per cent discount the Judge had allowed for remorse, rehabilitative prospects and s 27 factors was excessive and that no more than 25 per cent could be justified.  Lang J substituted 25 per cent accordingly.  This reduced the overall discount for mitigating factors, that is, including youth, to 35 per cent.  
[10]	The effect of Lang J’s higher starting point and reduced discount was to increase Mr Napia’s end sentence to five years, nine months’ imprisonment.  If the District Court Judge’s discounts were reinstated, Mr Napia’s end sentence would be five years’ imprisonment, so a maximum of nine months’ imprisonment would be in the balance on appeal.  
The application for leave
[11]	Ms Ngapo-Lipscombe submits the proposed appeal raises a matter of general or public importance.  She submits that, if the appeal were heard, this Court would have a further opportunity to discuss the significance of s 27 factors in sentencing and give guidance as to the information most likely to assist the sentencing court in determining the appropriate discount, if any, for such factors.  
[12]	Ms Ngapo-Lipscombe also submits a miscarriage of justice has occurred because the District Court Judge gave his discounts in the exercise of discretion.  She submits that, as a result, Lang J could not intervene unless satisfied the Judge had taken into account irrelevant considerations, or had failed to take relevant considerations into account, or was plainly wrong.  
Discussion
[13]	We are not satisfied either ground on which we may grant leave is made out.  
[14]	As to the first ground, and as we have said, Lang J reduced the discount for reasons related to this particular case.  Nothing in his judgment suggests that further guidance from this Court is required as to s 27 factors, or would have affected the outcome.  We also accept Crown counsel, Ms Irwin’s, submission that there is substantial guidance available in existing authorities as to how an offender’s background may be relevant in sentencing.  These authorities include this Court’s recent judgment in Zhang v R, delivered after we received counsel’s submissions.  Although immediately concerned with methamphetamine-related offending, much of what is said in Zhang, particularly as regards the point in issue in this case, is of general application.  We add we do not consider any of the statements in Zhang would assist Mr Napia’s application for leave.  
[15]	Likewise, we are not satisfied a miscarriage of justice may have occurred or will occur if the appeal is not heard.  The issue for Lang J was whether he was satisfied there was an error and that a different sentence should be imposed, which he plainly was.  As we have said, Mr Napia’s offending involved significant violence committed in the early hours of the morning against older, vulnerable and terrified people in their homes.  In light of both that and his criminal history we consider the discounts Mr Napia received were generous.  
Result
[16]	We decline Mr Napia’s application for leave to bring a second appeal against sentence.  

Solicitors: 
NL Lawyers, Tokoroa for Applicant
Crown Law Office, Wellington for Respondent