Nonsense on Twitter – week of 1 April 2019









 

The Reweti shuffle, or, a plea for a principled fudge

Disclaimer

It must be close to indisputable that, in most cases, avoiding a custodial sentence for a young person is a Good Thing.  Efforts to make that happen should be applauded, not criticised.  It is in that spirit that the two cases I discuss should be viewed.

Intro

In sentencing, two years’ imprisonment is the goal.  Two years’ imprisonment is home detention range.  If you can’t get a sentence down that far, then a custodial sentence can’t be converted to home detention.  Parliament says no, in the form of s 15A(1)(b) of the Sentencing Act 2002.  But if you could just find a way to two years or shorter, then all things are possible.

The trouble is, there’s a whole lot of case law about sentencing.  Precedent is a difficult thing to shake, and as a judge your job is to apply the law.  This piece is about the latest judicial contortion that two High Court Judges have used to get to two years’ imprisonment.  And while judicial contortion is the finest of spectator sports – this particular new trick comes with dangers.  What follows is a cautionary tale.

The Reweti shuffle

Step forward Reweti v R [2018] NZHC 809 and Simon France J.  Mr Reweti was an offender for whom home detention would have had a lot to offer.  As a brief side note, Reweti is a really interesting decision for his Honour’s framing of the sentencing in paragraph [2] where his Honour expressly invoked concepts of systemic racial disadvantage:

[2] Mr Reweti fits within a group concerning whom there is considerable present concern. He is a young Māori man, presently aged 18 years, already sentenced to prison. He came to the sentencing with some previous offences (which had been met with supervision) and alcohol issues which were instrumental in the most serious of the present offences – the aggravated robbery of a service station. He is one of a family of 13 who all live at home, and his mother is supportive of him. As noted, the home and the environment were assessed as suitable for a home detention sentence.

His offending was serious, though.  The District Court Judge had sentenced Mr Reweti to two years and nine months’ imprisonment.

On appeal, Simon France J reduced uplifts for other offending on the basis of totality, and afforded a greater discount for youth and personal circumstances.  I am skipping over these because the focus is then on the maths.

The elements that Simon France J had to play with were as follows:

Starting point: Four years’ imprisonment

Discount for personal circumstances: 30%

Guilty plea discount: 25%

Guilty plea discounts are normally applied as the final step in a calculation.  So in this case, one would normally expect to take a 30% discount from the four years, and then take a further 25% from that result for the guilty plea discount.

That’s more than “normal” though: it’s law.  The Court of Appeal said so in Hessell v R [2009] NZCA 450, [2010] 2 NZLR 450 at [21]:

[21] A discount for a guilty plea is to be seen as a discrete mitigating factor. That is consistent with s 9(2)(b) of the Sentencing Act. The discount is provided as the final step in the sentencing process.

[22] In adopting that view, we have followed the approach of the United Kingdom’s Sentencing Guidelines Council and the Law Commission’s draft. This approach will be familiar to most trial judges, as it was recommended by this court in a number of recent judgments: see, for example, R v Fonotia [2007] NZCA 188; [2007] 3 NZLR 338 at [50]- [51] and R v Walker [2009] NZCA 56 at [18]- [20]. Those judges accustomed to bundling all mitigating factors together will need to change their practice. The suggestion in Taueki at [44] that the discount for an early guilty plea should be “from the starting point” should now be read subject to this guideline.

The Supreme Court later had Things To Say about this decision, but not on this point.  We’ll come back to the Supreme Court decision in Hessell a little later on.

Right, enough set up, time for the Reweti shuffle and over to Simon France J to teach you the moves:

[21] A discount of 30 per cent, together with the agreed guilty plea discount of 25 per cent, produces a figure around 22 to 25 months. The exact outcome turns on whether one rounds fractions up or down, and also more significantly on when the guilty plea discount is applied.

[22] To explain the latter, the traditional approach is to make all the other adjustments, and then apply the guilty plea discount at the end. The source of that methodology is Hessell v R in the Court of Appeal. While it provides consistency, it can have unintended effects in a particular case. To take a simple example here, if the appropriate discount for youth were 25 per cent, then one might think a reduction from four years’ of 25 per cent for youth and other factors, and 25 per cent for the guilty plea, would produce a sentence of two years’ imprisonment. However, applying the Hessell methodology, the analysis is four years down to three’ and then the guilty plea discount attaches to that reduced figure, leaving a sentence of two years and three months.

[23] The Sentencing Act does not suggest a reduced impact for the guilty plea credit as opposed to other matters of mitigation. The Supreme Court in Hessell noted the Court of Appeal approach, and recognised its value in terms of consistency and transparency but did not endorse it as mandatory. Rather, what matters is a:

call for evaluation by the sentencing judge who, in the end, must stand back and decide whether the outcome of the process followed is the right sentence.

[24] Consistent with that, I observe here that if the only matter standing in the way of the availability of home detention is whether the guilty plea discount is applied at the same time as other discounts or afterwards, then the evaluation must be to apply it at the same time to enable “the right sentence” to be imposed. In the present case, 55 per cent (being 30 per cent plus 25 per cent) applied at the same time leaves a sentence of 22 months. Applied sequentially the sentence is 25 months. Accordingly, I intend in the present case to apply the discounts as a global figure.

(footnotes omitted)

Let’s get a slow motion replay of that!

I have two options.  The one that is applied in every other case, or the one that gets you a slightly lower sentence.  But, doesn’t the Court of Appeal in Hessell say you apply the guilty plea discount as the final step.  Yes, it does.

To get around that, Simon France J claimed the Supreme Court in Hessell backed him up.  But I don’t think it did.  The Supreme Court used the words that Simon France J quoted, but the Supreme Court wasn’t talking about the timing of the guilty plea discount.  It was talking about the percentage discount to be given for a guilty plea discount.  That was the issue in Hessell.  That can be seen from these paragraphs from the Supreme Court’s decision in Hessell just before the line that Simon France J quoted in Reweti:

[73] There is no objection in principle to the application of a reduction in a sentence for a guilty plea once all other relevant matters have been evaluated and a provisional sentence reflecting them has been decided on. Indeed there are advantages in addressing the guilty plea at this stage of the process (along with any special assistance given by the defendant to the authorities). It will be clear that the defendant is getting credit for the plea and what that credit is. This transparency validates the honesty of the system and provides a degree of predictability which will assist counsel in advising persons charged who have in mind pleading guilty.

[74] But, as we have emphasised, the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.

And, even if you choose to take the Supreme Court’s “right sentence” encouragement as going wider than the matters that were truly under consideration in Hessell, then you have to face the consistency point.

The vast majority of sentencing decisions do apply the guilty plea discount as the final step because that’s the understanding from Hessell.  And, as Reweti demonstrates, the timing with which guilty plea discounts are applied does make a difference to sentence.  It is not ideal that the process by which sentences are calculated can vary between judges.  Two identical offenders could get different sentences simply because a judge chose to depart from established sentencing methodology in a particular case.

Why is that in Reweti it is permissible to temporarily step outside the rules of the game?  This was a question that simply must have occurred to Simon France J.  At footnote 8 of his decision in Reweti Simon France J noted:

I observe that if the “rule” were to take the guilty plea discount off the adjusted starting point like every other mitigating factor, transparency and consistency would be equally achieved.

True.  But by playing with the timing of the guilty plea discount, the technique in the judgment undermined transparency and consistency.  It’s hardly a consolation to say “oh if only we all did it the same way, then we’d be consistent” when you’re the one acting inconsistently with every other sentencing judge.

The Reweti shuffle comes with no guidance about when it can or cannot be used other than it is available to ensure the “right” sentence.  What was it about Mr Reweti’s case that made it right to step away?  How will we know in future cases when to use this technique, and when not to?  How does it interface with the statutory imperative to impose the least restrictive sentence?

And just this week, another Judge has followed Simon France J’s technique – again for a “worthy” case but without recourse to explanation about why it could be used in this case but not any other case.  In R v Kokiri [2019] NZHC 501 Jagose J used the Reweti shuffle to get his sentence down to under two years’ imprisonment:

[38] The traditional approach in sentencing is to make any other adjustments to the initial starting point, and then to apply the guilty plea discount. Such an approach is consistent and transparent, but not mandatory. Doing so in your case:

(a) increases your initial 45-month sentence to 46 months by the one month for offending while on bail,

(b) then reduces it to 34-35 months by the 25 per cent discount for your personal factors, and

(c) reduces it again to 25-26 months by the 25 per cent discount for your guilty plea.

[39] Subject to roundings, the end result would be a little over two years’ imprisonment. That would disqualify you for any sentence of home detention. Another approach would be to apply the two 25 per cent discounts together to the longest period of imprisonment identified for you. Such would reduce your 46-month sentence to 23 months – just under two years’ imprisonment, qualifying as a short-term [sentence] of imprisonment. Given that choice, I must stand back and decide “whether the outcome of the process followed is the right sentence”.

(footnotes omitted)

I have taken the footnotes out, but Jagose J expressly cited Reweti v R as authority for what he did.  No further explanation was given.

Principled fudges

What I am coming to is the need for principled fudges in the judicial system: those techniques where everyone knows what the judge is doing but (and this is important) it’s okay if the judge gets away with it.

With respect, the Reweti shuffle is not a principled fudge.  It risks corrosion of more important principles of consistency in sentencing that turn out to be quite important and difficult to rearrange if they’re knocked over.  It’s not acceptable that we have two different approaches to sentencing.  Not for something like the timing of the guilty plea discount – where the difference is stark and one of timing, rather than subjective appreciation.  The inconsistency that comes from injustice is greater than any injustice from the application of a guilty plea discount as the final step of sentence.

The more principled fudge is to find greater discounts for other matters.  25% is the upper limit for guilty plea discounts, but personal discount factors are a matter for considerable flexible subjective appreciation.  In sentencing judges’ determined march for the two year goal, no one is going to complain too much if a discount for youth is 7.5% as opposed to 5%.  That falls squarely within the permissible discretion for a sentencing judge.

My personal favourite is where a sentencing judge surveys all personal factors – age, hardship, efforts at rehabilitation, remorse, whatever else you care to name – and then gives a global percentage discount for all personal factors.  This can hide any amount of generosity in order to get to two years’ imprisonment.  And the best thing about this trick is that it is near impossible to unpick on appeal.

Anyway, to the extent that this had a point it’s this: the Reweti shuffle is very entertaining in terms of judges doing their best.  It’s done for admirable goals but I don’t think it should catch on.  More principled fudges exist to secure the same ends.

 

UPDATE: the March issue of the New Zealand Law Journal has a different perspective on Reweti v R: see Luke Elborough “Sentencing in hard cases – just outcomes through a holistic approach” [2019] NZLJ 45.

Eventual findings of the just-announced inquiry into intelligence services

We made mistakes, but those mistakes aren’t considered quite bad enough for anyone to have to resign or anything.

People like the killer are very hard to detect.

It’s even harder to detect them when you’re not looking for them.

We were mainly looking at other people.

People like people who had the same religion as the victims.

Or Keith Locke that one time.

While we’re here, though…  has there ever been an intelligence services review that hasn’t recommended expanded powers?

Thought not.

Thank you, that’s very generous.

The most lawless place in New Zealand

Where is the most lawless place in New Zealand?  If you define it as the place in New Zealand that is the furthest away from a courthouse then that should be able to be calculated.  If you don’t define it that way then it’s the Oceanic Hostel on Anzac Avenue, Central Auckland.

A search of the Ministry of Justice website gives locations for the courthouses in New Zealand which is a start.

In this exercise I’m not including all territory in This Realm Of New Zealand.  Penguins in the Ross Dependency face many challenges and access to justice numbers among them.  I’m talking about the main islands and in-shore islands of New Zealand.  The Chathams count as main islands, but since there is a courthouse on the Chathams that won’t be our winner.

Fellow Twitter user @JoshMarshallNZ provided a map into which he had plugged on courthouses.  The map can be accessed here.

Map
I have a tipline! Just like WhaleOil!

From this we can kind of eyeball about where it might be.  Either half way up the West Coast or in the far southwest corner of the South Island.  Lawless lands, both!

Now, some of you probably know how to use Google Maps to calculate this sort of thing, but I don’t.  So I have done it by hand and ruler to figure out the approximate place, then looked on a map.  Highly scientific!  And while I can probably be cross-examined on the shortcomings of my methods I think it’s accurate enough in a brute force kind of way.

map2.png
Technical know-how!

It’s not the middle of the West Coast because the South Island is too thin and the High and District Courts at Timaru remain close to the West Coast.  It’s a point in the extreme south west of the South Island.  Not exactly the equidistant point between the Queenstown District Court and the Invercargill High and District Courts as the shape of the coast hews north east.

Then it’s to Google to find out precisely where it should be.  It’s an offshore island called Resolution Island or Tau Moana.  That sounds vaguely law-related!  It’s no Denning-land, but it’s close.  So Resolution Island is the point in “mainland” New Zealand that is the furthest from a court.  In particular, its western coast line is 165 kilometres from the Invercargill District Court give or take.  That’s shorter than I thought it was going to be!  In New Zealand you’re no more than 165 kilometres from a courthouse at all times.

Resolution Island
I am a master of maps!

The particular piece of Resolution Island that is furthest away is a place called the Five Fingers Peninsula.  Wikipedia has more information, as does the Department of Conservation.  And this Te Papa story has a photo of the Five Fingers themselves – rocky outcrops rising up from the sea at the southern tip of the peninsula.

Five Fingers
Also on this map are the “Many Islands” which I’m pretty sure is cheating as far as naming things goes.

Incidentally, this reminds me of the decision in Mountz v Craig [2016] NZHC 1558, (2016) 23 PRNZ 244 in which Associate Judge Osborne (as he then was) had to decide whether the Invercargill or Dunedin High Court Registry was closer to Wanaka.  Exactly the type of decision we need more of.  Zaniness is a seldom-present quality in legal disputes.

(EDIT: And see also, thanks to a commenter, the case cited in MountzNicholls v District Court at Masterton HC Masterton CP 1/96, 19 February 1996 where McGechan J had to determine whether the High Court at Wellington or Palmerston North was nearer to Masterton.)

Maybe mercator projections mean some of these distances are a little off?  It’s hard to tell.  But for now, and unless corrected, I claim that the Five Fingers Peninsula is the most lawless place in New Zealand.  So, if you like, run as far away from justice as you can, and pull the middle Finger.

Template statement for law firms on innovation and legal tech

Version One

Strictly Obiter and Associates are excited to announce a new collaborative development with literally every legal technology start-up in the world.  This will position Strictly Obiter as a dynamic and future-focused incubator of agile and engaging workflow systems.

We are motivated to centre ourselves as a change-agent for innovation; seeking synergies as we strive to be a catalyst for groundbreaking, cloud-based paradigms that will produce operational efficiencies for our clients.

In addition, internal processes will see us partnering with clients to augment an experiential and design-driven, user-centred approach to our work.  We will streamline,  and be an agile new player in sectors such as fintech.

Machine-learning will position us as a market leader through a transformational approach to understanding our metrics.  We are pivot-ready.  This is an audaciously non-linear approach and the sense of intentionality that we bring to this disruption of our legacy systems is second to none.

We will cast off the chains of pen and paper and bind ourselves with blockchain.  Our peer-to-peer systems are peerless.  Blue-sky thinking has led us to the Cloud.  We are replacing our sense of discovery with a sense of e-discovery.  Every man must have a code, and ours is Code.  We are making a hard drive towards the future.

Aggregated experiential platforms will transform our networks.  Non-static will be our watchword as we seek efficiencies in an iterative way to overcome our clients’ lived problems.  Smart analytics and algorithms will see us metamorphose into an agile firm, supplemented by automated cybersecurity protocols.

The future is now, and Strictly Obiter and Associates is proud to lead the way.

 

Version Two

We started using Dropbox for our client documents.

Editorial: the Tax Working Group’s proposed changes are unworkable, by the Chief Parliamentary Counsel

danger

It’s the day we all feared.  The Tax Working Group has released its proposed changes.  Well good for them.  None of it’s going to happen.

The Income Tax Act 2007 is virtually unreadable as it is.  We’re talking sub-sub paragraphs, and capital-lettered amendment sections.  And they want to what?  Add more?  Do you know how long the Income Tax Act 2007 currently is?  It’s over 3500 pages!  That’s just the Act!  That’s not any of the accompanying regulations or associated Acts.  It’s got a section number in it called “CW55BB” – that’s just the section number, without any subsections!

Right now the Income Tax Act 2007 is like a Jenga Tower where there aren’t any safe moves left.  There are entire Parts of that Act that we haven’t touched in years.  It’s too unsafe to send Parliamentary Counsel into them.  Tinkering with the wrong section risks collapsing the full weight of some Parts down onto those poor souls.  For the last five years we’ve just been banging a whole lot of new operative provisions into a schedule.  We’ve been hoping no one noticed and, frankly, it seemed like we were getting away with it.  Denzil Ward would be rolling in his grave.

Well, that won’t work any more; the Tax Working Group wants significant changes.  It’s not just extending the bright line test.  Given enough time and sufficient safety equipment we might – might – be able to manage changing references to a time period.  But expanding subject matter coverage when who knows where that subject matter features elsewhere in an Act that takes seven reams of paper to print?  You’re dreaming, mate.

Don’t get me wrong – we’re not afraid of doing our job.  And we’re good at it.  Being a Parliamentary Counsel isn’t all just doing a quick find-and-replace when a new government decides they don’t like the name “Vulnerable Children Act”.  I mean, you should see some of the 19th century legislation we have to keep on life support.  But the prospect of implementing any of these changes is worse than that time we had to write an Act declaring a living person was dead.

Right, time to see how I can make this the Legislation Design and Advisory Committee’s problem.