Strictly Obiter’s 2019 Law Awards

It’s almost the end of the year!  Time for a retrospective.

I don’t know how the real Law Awards started.  Presumably the person responsible surveyed the legal industry and decided that the solution for its myriad problems was more self-congratulation.  It functions now as a sort of peer support group for those whose glory days were high school prizegivings.

It’s arranged by Key Media, who publishes NZ Lawyer Magazine.  NZ Lawyer Magazine is probably best known for sending Morning Briefing emails which contain legal news essential to New Zealand lawyers such as “Ashurst opens Global Delivery Centre in Brisbane”, “Burford Capital makes governance change ahead of US IPO plan”, and “Hogan Lovells to go solo in Joburg with separate SA firm”.

But the Law Awards are important: who doesn’t love celebrating an “inaugural medium-term note issuance and sustainability financing framework”?  That is why we all went to law school.  There’s also a prize for mid-market deal of the year, which is great if you’re a fuel-efficient Holden station wagon and slightly less great if you are a lawyer who is an adult human.

I suppose it’s just all very good at celebrating the business of law, and not the things about law that are interesting: the quirks, the ironies, the curiosities.  Every day, new cases come out on NZLII and they’re like tabloids if you read them the right way: “Guess what this judge said?” or “Ancient legal doctrine has flash new makeover”.  Plus you can normally headline them with a terrible pun.  Academics and judges devote their lives to swimming in the deep end of the law, but as someone who can barely swim I’d like to think you can have plenty of fun in the shallows too.

So, with all that in mind, here are the things I’d give awards to for this year.

 

Category: New Chief Justice of New Zealand of the Year

Winner: Chief Justice Dame Helen Winkelmann

What the assessors said: The first time this award has been conferred since 1999.  Tough to find an angle to parody in the same way as one could have Elias CJ dissenting all the time, but there’s something to be done with hyper-competence.

 

Category: Best Court of Appeal Decision of the Year

Winner: Misa v R [2019] NZSC 134

What the assessors said: Technically a Supreme Court decision, though you wouldn’t know it to read it.  The Supreme Court affirmed a bunch of Court of Appeal authority on miscarriage of justice and half the word count of the decision seems to be devoted to phrases like “we agree with the Court of Appeal”.  A real value-add.  (To be fair, when read in conjunction with Sena v Police [2019] NZSC 55 the Supreme Court had a good forking-over of the grounds for conviction appeal this year.)

 

Category: Best Dodged Question of the Year

Winner: Court of Appeal in Hai v Minister of Immigration [2019] NZCA 55,

What the assessors said: Ever since Machida v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZCA 162, [2016] 3 NZLR 721, we’ve been left to wonder whether the “any other reason” ground for leave to appeal to the High Court in s 245 of the Immigration Act 2009 means the same thing as the “any other reason” ground for leave to commence judicial review in s 249 of the Immigration Act 2009.  Identical statutory language, but Machida only pronounced on the s 245 test.  Given that Parliament intentionally amended s 249 to be identical to s 245, in order to reduce the number of applications for judicial review, an identical interpretation seems consistent with the legislative intent.  Since just before Machida, though, Palmer J has been leading an armed insurrection from the High Court bench arguing that the s 27 NZBORA right to judicial review means a more generous interpretation should be given to the “any other reason” ground for the test under s 249 (see three Palmer J decisions: (RM v Immigration and Protection Tribunal [2016] NZHC 735; AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471; and Hu v Immigration and Protection Tribunal [2016] NZHC 1661).  The Court of Appeal’s first time dodging this question in Kumar v Minister of Immigration [2016] NZCA 492, [2016] NZAR 1591 was good but at the time the assessors felt it needed more time to develop, and for the Court to really commit to dodging this important question of statutory interpretation.  This year, we are pleased to confirm that that commitment is really on display when the Court went full on “lalalalala we can’t hear you” in Hai and again declined to answer the question, saying “For the reasons that follow, we do not need to resolve the issue in this application either” (at [39]).  Classic.  And in the meantime, there are maybe two dozen of these cases per year in the High Court without an answer to this question.

 

Category: The “You’ve Gotta Be Kidding Me” Prize for Bizarre Statutory Interpretation

Winner: Decision Suppressed [2019] NZCA 612

What the assessors said: You’ve gotta be kidding us.

 

Category: Prize for Party Anonymisation That Sounds Most Like A Civil War At Crown Law

Winner: SG v DSG [2019] NZHC 218

What the assessors said: Picked at random you say?  Suuuuure.

 

Category: Best coverage of a (quasi) judicial proceeding.

Winner: @economissive for this Twitter thread covering the Operation Burnham Inquiry hearings.

What the assessors said: Captured the vibe of cross-examination that had more skewering than a kebab shop.  Fantastic public service in tweeting this.  See also Thomas Manch’s reporting on stuff.co.nz which gave excellent write-ups.

 

Category: Figurative Attack on the Judiciary Award

Winner: Mark Mitchell, National Party Justice Spokesperson for the executive sending much stronger signals to the judiciary about sentencing policy.

What the assessors said: We can’t really improve on what the Chief Justice said.

 

Category: Non-figurative Attack on the Judiciary Award

Winner: Gilliland v Police [2019] NZHC 289

What the assessors said: This joke is in tremendously poor taste.

 

Category: Shortest Substantive Decision of the Year

Winner: Ullah v Chief Executive of the Ministry of Business, Innovation and Employment [2019] NZHC 332

What the assessors said: Eight paragraphs for an application for judicial review.  No messing around.

 

Category: Classic Brewer J Moment of the Year

Winner: Still wearing his ceremonial red robes when presiding over admission ceremonies as late as November 2019, despite the ceremonial reds being discontinued.

What the assessors said: Classic.

 

Category: Award for Looking Like Parents That Are Just Happy That You’ve Come Out Of Your Room And Joined The Family At The Table For Dinner, It’s So Nice To See You And We Can Eat Together As A Family Tonight

Winner: These two from the new Courts of New Zealand Video:

Mum and Dad

 

Category: Best PR in the Business Award

Winner: Whichever media liaison person shut down that “My sister is the Chief Justice” story which got precisely one story on NBR and then no one ever talked about it again.

What the assessors said: Sure, it was someone saying something dumb and only speaks to poor judgement on the part of the person who said it, but it is astounding that this didn’t get more play.

 

Category: The Austin Powers Award For Bringing Back The Swinging Sixties

WinnerH (SC 52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433

What the assessors said: Anisminic is back baby!  A decision written by O’Regan J, but also one of the last decisions of Elias CJ before she was out the door.  A threat to ouster clause detente off the back of a highly sympathetic set of facts.

 

Category: The “I Just Have To Remind You That You’re A Judge Writing This” Prize.

Winner: Kós P and French J in Zhang v R [2019] NZCA 507 at [51] which included the line that drug mules “may or may not apprehend the scale of the contents of their bags or bodily passages”.

What the assessors said: Christ.

Highly commended: Kós P in Orchard v R [2019] NZCA 529 at [1] which opened the judgment with the line “Mr Orchard, an arborist, fell from a tree”, before going on to describe a grim-as-fuck set of facts.

 

Category: Most Suspicious Art Design in Judicial Photographs

Winner: The background of the photos of new senior court judges, like this one:

EAYGUobU0AADhgR

What the assessors said: All the judges sworn in in Wellington this year had this background, which is a dazzling array of volumes in primary colours.  It looks really good!  But is it a genuine array of books?  Any report series or statute series has to be longer than the few volumes displayed from each series, right?  So has this collection been designed and curated solely for the purpose of being a background that pops?  That seems unlikely given it would have to be maintained over the length of the various swearings-in this year.  We want to know what those books are!  If someone can get Strictly Obiter into what we assume is a library in the Old Supreme Court in Wellington, he will investigate and report back!

 

Category: “Times This Blog Nearly Got Into Genuine Trouble” Commemorative Plate

Winner: Publicising the Crown Solicitor at Invercargill’s strange LinkedIn comments about the Aoteroa Legal Workers Union where she seemed to say that young lawyers needed to harden up.

What the assessors said: The Crown Solicitor at Invercargill doesn’t have a LinkedIn page any more.

Highly commended: Complaints about my Mark Lundy tweets 😦

 

 

Chief Justice: judiciary will send “much stronger signals” to executive on sentences

In light of comments by politicians that the criminal justice system “does respond to the government of the day, and the signals they’ve sent, without a doubt”, and that politicians will “send much stronger signals to the judiciary around [sentences]”, the Chief Justice has issued the following statement:

———————–

The independence of the New Zealand judiciary is the bedrock of our constitution.  The judiciary does not and will not respond to directions from the executive.  Indeed, if there is one thing that my time as Chief Justice these last nine months has confirmed to me it is that the judiciary is almost impossible to give any sort of direction to.

The judiciary will continue to faithfully apply legislation enacted by Parliament.  It is Parliament, not the executive, that can set guidelines for sentencing policy.  That is primarily through the means of the Sentencing Act 2002 which, of course may be amended by Parliament to reflect the policy objectives of the government of the day.

A good example of that is the three strikes provisions.  Since Parliament enacted the three strikes sentencing policy, the courts have followed it to the letter.  It just so happens that, due to misprints in judicial copies of the Sentencing Act, the letters that record the manifest injustice exceptions have been bolded, highlighted and typed in size 48 font.

The independence of the judiciary can also act as a check on the conscience of the executive.  It is not for the judiciary to express an opinion on whether a ban on prisoner voting is a “good idea” or a “bad idea”.  It is for the judiciary to decide whether the executive and Parliament have met the standards those institutions chose to set for themselves through the New Zealand Bill of Rights Act 1990, then throw as much shade as it can over 150 paragraphs.

Sentencing is an exercise that requires the principled exercise of discretion.  Legislative measures that restrict that discretion risk injustice in individual cases where judges are prevented from crafting a sentence that fits the circumstances of the case.

As for the idea of “stronger signals”, it’s cute that you think that, but the executive tends to send a rather singular “signal”.  We get it: you think sentences should be longer.  In the absence of any other constructive input it has fallen to the judiciary to reform sentencing policy on methamphetamine to focus on rehabilitation, recognise the impact of young persons brain development on offending, develop principles about the effect of mental illness on sentencing, craft systemic deprivation discounts that begin to grapple with the effect of colonisation, expand rangatahi courts, and more.  And all of that without the help of signals on any of that.  We are doing more to accomplish a reduction in reoffending than any soundbite on Checkpoint involving a ham radio metaphor.

It is a shocking indictment on this country when the judiciary is the most progressive of the three branches of government.  The finest traditions of the common law system require judges to be port-soaked reactionaries, lamenting the demise of corporal punishment and compulsory national service.  We aren’t thrilled that it falls to us to drag sentencing policy kicking and screaming into the 21st century, but we’ll do it if we have to.

If this signal isn’t strong enough, I’m happy to repeat myself.

 

PS: “Strike Force Raptor” is what we call the High Court commercial panel so you’ll have to come up with another name.

The second-to-last nail in the coffin

Law is a profession.  Professions like to think their shared history and traditions give them a unique collegiality when really what it mainly gives them is silly clothes.  But one of the traditions of law, informed by that shared history, is the idea that barristers cannot sue clients for their fees.  Now, the foundations for that proposition have never looked shakier, and a new Court of Appeal decision has put the idea on life support.

 

The Rules and Atkinson v Pengelly

First, some background.  Barristers are not instructed directly by clients.  Instead, the client instructs a solicitor (a contractual relationship) and then the solicitor instructs a barrister.  The client pays the solicitor money for the services of the solicitor and for the barrister.  As a matter of professional ethics, the solicitor must pay the barrister’s fee (see r 10.7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

(Initial disclaimer here: what I’ve just described is the traditional understanding of a rule called the intervention rule whereby a client cannot instruct a barrister directly.  The intervention rule has been relaxed in recent years in some but not all areas of law.  It involves direct billing or escrow accounts.  I’ll return to the position under the intervention rule later but for now assume the traditional model above holds true, because it is still widespread.)

If the client doesn’t pay a bill, then the solicitor can sue for the solicitor’s fee – that’s simple, there is an agreement.  The barrister can’t.  The barrister is reliant on the solicitor suing in the solicitor’s name, to recover the barrister’s fee.  And the Rules let the solicitor do that.  Rule 10.7.2 says:

10.7.2 A lawyer with a practising certificate as a barrister and solicitor may sue for and recover from the party chargeable any fees paid or payable by the lawyer to a barrister sole for work done or to be done on the instructions of the lawyer in relation to a client’s affairs, if those fees are shown as a disbursement in a bill of costs rendered by the lawyer to the party chargeable.

Then, a footnote to r 10.7.2 says this:

This rule is necessary because a barrister sole is not entitled to sue for his or her fees: Atkinson v Pengelly [1995] 3 NZLR 104.

It’s that case – Atkinson v Pengelly (PDF)- that articulated the basis for why a barrister cannot sue for their fee.  It’s been incorporated into the Rules.  I’ve always thought that’s a little strange because what happens to the Rules if Atkinson v Pengelly is overruled?  There may yet be a day…

But for now Atkinson v Pengelly says a barrister can’t sue for their fee.  It’s a mid-1990s High Court decision by Tipping J.  That’s a pedigree that is normally Rock Solid.  In my view, though, the decision’s showing it’s age.

In Atkinson, Tipping J gave four reasons why a barrister can’t sue for their fee.

The first reason was that, “[t]he starting point must be that in England a barrister has no right to sue his fees” (at 110).  That was relevant because s 61 of the Law Practitioners Act 1982 stated:

Subject to this Act, barristers of the Court shall have all the powers, privileges, duties, and responsibilities that barristers have in England.

But that reason can’t apply today, because the Law Practitioners Act 1982 is no longer in force.  It’s been replaced by the Lawyers and Conveyancers Act 2006 and the new Act doesn’t contain a provision like the old s 61.

So park that reason, what next?

The second reason was that allowing barristers to sue for their fees “might undermine the general rule allowing barristers immunity from suit for litigation…” (at 111).

But that reason can’t apply today either.  The Supreme Court did away with immunity from suit for barristers in Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7.  Not only that but Tipping J was one of the Supreme Court judges who voted to get rid of it!

For completeness, I note that in Chamberlains the Supreme Court wrote:

[98] In medieval times, barristers, as we now know them, were liable for negligence and, so it seems, were able to take action to recover their fees. During the sixteenth century there was a revival of interest in many facets of life in ancient Greece and Rome. Included in this renaissance was the study of Roman law. It was a well-established tenet of Roman law that advocates had no contractual right to sue for their fees. In that respect they had no contract with their clients and what they received for their services was in the nature of an honorarium.

[99] The importation of this Roman law approach into the English common law resulted in the medieval view being overtaken by the view that as there was no contract between barrister and lay client, or between barrister and instructing solicitor for that matter, there was no basis for any action for breach of any duty to take care. Until the twentieth century there was no recognised general cause of action for negligence, outside contract, in relation to services rendered by a professional person. The absence of any contractual basis for a claim against a barrister, and the corresponding inability of a barrister to sue for outstanding fees, was generally seen as the basis upon which barristers’ so-called immunity was based.

So not the whole immunity from suit argument either.  What next?

The third reason was that the wording of ss 139 and 140 of the Law Practitioners Act 1982 seemed to suggest obliquely that the Act was enacted on the understanding that barristers could not sue for their fees (at 111).  Tipping J was a little apologetic about this one and recognised it “does not clinch the matter” but it was one plank of the argument (at 111).

Time has made this argument weaker still, I think.  Atkinson says a barrister cannot sue for fees because the Law Practitioners Act 1982 says you can’t.  The Law Practitioners Act 1982 gets abolished.  And its replacement says that a barrister cannot sue for fees because Atkinson says you can’t.  But the reason Atkinson says you can’t is no longer there.  That’s like building a Jenga tower: the building blocks get removed and placed on top.  The argument becomes self-referential, rather than being grounded in good policy reasons.

The fourth reason was that this is the way it’s always been done.  Or, as Tipping J put it (at 111):

Throughout my time in the profession I have never heard it seriously suggested that barrister sole either have or should have the right to sue their instructing solicitors or their lay clients for their fees.

I’m generally sympathetic to arguments of tradition.  But this is simply a recourse to history that no longer has policy underpinning it (such as the immunity from suit point), and which cannot account for modern day changes to the intervention rule which has made inroads into traditional understanding of barristers’ obligations.

It might be thought, then, that the time for a challenge to Atkinson v Pengelly is inevitable.  That’s not to say that some more up to date reasons couldn’t be magicked up.  At a guess I suppose you’d have to back the “no contractual relationship” horse.  But there’s a difficulty, I think, in that lawyers are obliged to provide terms of engagement including information about their fee (and that includes barristers at least under direct instructions).  That looks like a contract and quacks like one too…

For completeness, all of the arguments for why barristers should be able to sue for their fees can be found in this piece: GE Dal Pont “The Recovery of Counsel’s Fees” (2004) 28 UQLawJl 381, most of which apply in New Zealand.

Anyway, that takes the legal position up to this month, when the Court of Appeal released Keene v Legal Complaints Review Officer [2019] NZCA 559.

 

Keene – the second-to-last nail in the coffin

Mr Keene was a barrister.  Mr Cutting was his instructing solicitor.  A client owed them money.  Broadly speaking, the client disputed the quality of the work by Mr Keene and refused to pay.  Mr Cutting sued the client to recover the money owed to Mr Keene (because, remember, the Rules said Mr Keene could not sue).

Mr Cutting was the plaintiff and, in his capacity as a solicitor, he instructed a barrister to act on the proceeding aimed at getting Mr Keene’s money.  The barrister he instructed?  Well, that was Mr Keene.

By the time matters reached the Court of Appeal, Mr Keene had against his name a disciplinary finding for breach of r 13.5.3 of the Rules.  Rule 13.5.3 said:

13.5.3 A lawyer must not act in a proceeding if the conduct or advice of the lawyer or of another member of the lawyer’s practice is in issue in the matter before the court. This rule does not apply where the lawyer is acting for himself or herself, or for the member of the practice whose actions are in issue.

The issue was on the facts of the case (which I’m not going into here), was Mr Keene’s conduct “in issue” in the debt recovery proceeding.  After all, the client was saying that Mr Keene did a bad job.

Now, you can see how this whole situation could have been avoided if it wasn’t for Atkinson v Pengelly.  Mr Keene could have acted for himself and sued the client to recover his fee.  In that case, even if Mr Keene’s conduct was “in issue”, Mr Keene would be representing himself so he wouldn’t be “acting”.  Rule 13.5.3 wouldn’t apply.

But the Court of Appeal was clear it wasn’t being asked about Atkinson v Pengelly.  That was “not an issue we are concerned with on this appeal” (at [18]).

The Court of Appeal exonerated Mr Keene.  This is what Goddard J said for the Court (footnotes omitted):

[74] On the orthodox approach, as noted above, Mr Keene could not sue for his own fee. Rather, the only way that his fee could be recovered from the second respondents was for his instructing solicitor, Mr Cutting, to bring proceedings seeking to recover that fee. That approach was adopted in this case. So Mr Keene had an instructing solicitor, Mr Cutting. But in substance the proceedings were being brought for the benefit of Mr Keene.

[75] In the normal scenario where a client instructs a solicitor, and that solicitor instructs a barrister to act for the client, the obligations of the barrister to “the client” under the Rules are owed to the person who has instructed the solicitor, and through the solicitor, the barrister. They are not owed to the instructing solicitor. As a matter of form, Mr Cutting was Mr Keene’s client in the fee recovery proceedings as well as being his instructing solicitor because the fee recovery proceedings were brought with Mr Cutting named as plaintiff. But in this case the arrangements between Mr Cutting and Mr Keene meant that Mr Cutting’s interests were not directly engaged. Rather, the benefit of the proceedings would accrue to Mr Keene, and the cost burden of the proceedings also fell on him.

[76] We recognise the theoretical possibility of Mr Cutting being exposed to a costs award, or criticism, in relation to the conduct of the proceedings. But this risk seems remote, and one that Mr Cutting was well placed to understand and manage.

[77] Our approach to the interpretation of r 13.5.3 must be informed by the nature of the Rules, which as noted above are ethical rules that require a focus on substance rather than form, and by the purpose of r 13.5.3 read in context. We do not consider that the mischief at which r 13.5.3 is directed was present here, in circumstances where:

(a) There was no client who was looking to Mr Keene to act independently of his own interests, whose reasonable expectations of independence were disappointed because Mr Keene’s conduct was in issue. Mr Keene was the “in-substance” client. Mr Cutting was the client as a matter of form, but he knew that the proceedings were brought for Mr Keene’s personal benefit in circumstances where their mutual former client had raised concerns about the fees. There is no suggestion that his interests were compromised by Mr Keene acting in these circumstances.

(b) The position vis-á-vis the Court was also transparent. The Court knew Mr Keene was acting as counsel in order to recover his own fee, and he could not be expected to be completely independent in those circumstances. The Court was able to adjust its expectation of independence in this context in precisely the same way that it would if he were a barrister and solicitor suing a former client for payment of outstanding fees.

[78] Adopting a purposive and contextual approach to the interpretation of r 13.5.3, we consider that the better view is that on the facts of this case Mr Keene was “acting for himself”. Form should not distract from substance.

[79] It follows that there was no breach of r 13.5.3 in this case, as the rule did not apply.

This is the Court of Appeal saying that there is no ethical impediment to a barrister acting in a proceeding to recover their own fee.

True, it says nothing about the ability of a barrister to sue a client in the barrister’s own name.  But the decision gives the tick of approval at least to the idea of a barrister acting in that fee recovery process.  And the Court is clear: the reason there is no ethical impediment is because really this was a case of the barrister acting for themselves.  Forget the labels: in substance this was Mr Keene suing for his own fee.  And what’s wrong with that, the Court asks.

When the day comes that Atkinson v Pengelly is challenged you can see how this decision is going to be used:  if there is no ethical issue with a barrister “in substance” suing for their own fee, why can’t we make the form match the substance and do away with Atkinson v Pengelly?  I don’t know what the answer to that question is.

Between this decision, and the new intervention rule, there are structural changes that mean we should think carefully about accepted wisdom in this area.  There will come a day where simply invoking the name of Atkinson v Pengelly will not be enough to explain why barristers cannot sue for fees.  If, as the Court of Appeal says in Keene, form should not distract from substance, then that day might come sooner than we thinkAfter all, we’ve done away with plenty of our silly clothes.  

 

 

[[Disclosure: I had a degree of involvement in the Keene case.  This post has intentionally avoided the merits of the judgment but looks at what I think is a really interesting question of where to from here on an aspect unconnected with the merits.]]

[[Thanks to Judi of NZLII for digging out an unreported copy of Atkinson v Pengelly and uploading it to NZLII so I could link to it in this post.  NZLII needs support and you can do that through its Donation Form.]]

 

The Court of Appeal’s recipe for a chocolate cake

clos up  on Burned Gingerbread on wood table
I followed the instructions to the letter.

 

Inspired by Zhang v R [2019] NZCA 507 and Orchard v R [2019] NZCA 529.

 

Band Four chocolate cake

As a starting point it serves 8-10.

 

Ingredients

The ingredients available are any of the following.  Before you start be sure to assess not only the presence of these ingredients but also to evaluate their nature and quality.

175 grams of butter (softened depending on personal circumstances)

1 and three quarter cups of sugar in cases of particular aggravation

1 tsp vanilla extract

Up to 3 eggs

2 cups of flour, where the flour is of at least 60% purity

No more than half a cup of cocoa, unless more is required

2 tsp baking powder

1 cup of milk

 

Method

Preheat the oven to up to 180 degrees celsius, but this should not be seen as an upper limit and in appropriate cases this could go higher.

Place the butter, sugar, vanilla in a large clean mixing bowl.  Cream them together but ensure you continue to distinguish between them.

Add the eggs one at a time, being careful to avoid double-counting, then mix.

Sift in the flour and cocoa to the extent they apply.  This will be determined primarily by reference to their weight.

Add the baking powder taking care to avoid excessive uplift.

Pour in the milk and stir gently.  Then, step back and compare the mixture to other cakes you have baked in the past.

The mixture should still have a runny consistency but consistency is not an absolute end: the task remains an evaluative exercise.

Pour into a 30 centimetre tin.  Some overlap at the margins is to be expected.

Place in oven and bake for up to half an hour, though consider whether it should be released from the ten minute mark onwards.

Remember it is the end result that matters and not any individual step or ingredient.

 

Uncollected thoughts on Zhang v R [2019] NZCA 507

Guidelines
Barbossa and (and I had to look this up) Jack JJ

Who doesn’t like guideline judgments?

I don’t like guideline judgments.  I mean, I do.  But what I like even more are the judgments of the Court of Appeal *after* a guideline judgment.  The ones where the Court says “pffft nice try, losers, but what we really meant was this”.  I’m looking forward to those.

The Court of Appeal doesn’t like guideline judgments either.  Zhang v R [2019] NZCA 507 is a judgment written with a pencil taped to the end of a bargepole.  It’s an exercise in pre-emptive dread, knowing that words intended to afford flexibility and discretion will begin to ossify the second they go beyond Molesworth Street.  Throughout the judgment there are reminders to readers that sound increasingly desperate.  Just because the Court is suggesting some numbers and bands doesn’t mean you can’t sentence outside them.  Just because they put a number on a percentage discount doesn’t mean it couldn’t go higher.  Just because we’re the Court of Appeal you don’t have to do what we say.  It won’t work.  Like a tragically hip relief teacher, attempts to get down with the youth in the District Court won’t work.  It’s axiomatic that a guideline judgment becomes axiomatic.  The rote learners of this world, which include nearly all criminal practitioners on both sides, will be saying in a few months time that you can get a 30% discount for addiction, and that this is a band three/lesser role which means a start point of X years, period.  What began as a “one size fits all” judgment will shrink in the wash to become simply “one size”.

That’s a pity, because the judgment itself is a work of art.  Do you like signposting in writing?  This is signposting central.  Every point neatly divvied up into four sub-points.  Every outstanding argument is promised to be returned to, and its return heralded two paragraphs later.  I can’t remember the last time I was able to read a hundred page judgment in one sitting.  Even my meme-addled brain with a concentration span of approximately two seconds could follow along.  More of this please.  You’ll have got the vibe of the decision from the media release.  R v Fatu‘s bands are retained with adjustments.  There’s now a band five because band four was catching too many people.  Role can influence starting point, but not as much as pretty much every intervener wanted.  Personal mitigating factors are back on the table for serious drug offending (more, as Downs J would say, about this later).  And they’re back in a big way.  Around 30% is on offer for addiction, if you can prove it.  Add another 25% for guilty plea and the sentencing discounts on offer begin to look like they’re being offered by the Briscoes lady.

The High Court doesn’t normally like guideline judgments but they’re not allowed to say that out loud.  They might like this one given that it seems a paean to sentencing discretion.  On Friday when my matter got bumped from the chambers list without warning, I wandered into the neighbouring courtroom and watched what might have been the first post-Zhang first instance sentencing – a case called R v Cutler [2019] NZHC 2737 (promptly whacked up on Decisions of Public Interest).  It all seemed to work well enough.  Ten kilos of meth in an importation and distribution ring gets you approximately a seven year end sentence.  That would quite simply not have happened under Fatu.

Prosecutors don’t like guideline judgments too.  Perhaps that’s not meant to be said out loud either – this sense that somehow it’s cheating when the rules have been changed and people can get credit for things they didn’t used to get credit for.  I don’t know.  God forbid we’re churlish about a level playing field.  But it’s a case of worst instincts revealed sometimes. And it’s interesting to watch those thoughts being processed.  Maybe more on that at another time.

Anyway, I tell you who liked this guideline judgment: Brewer and Moore JJ.  Both of them are referred to as “very experienced criminal judges” (at [107] and [108]).

For my next trick, this Supreme Court precedent will disappear

The part of the judgment that stands as a triumph of the art of judgery is the section consisting of paragraphs [133]-[136].  The paragraphs are too long to reproduce in full here but they revolutionise/normalise class A drug sentencing by saying that personal mitigating factors can be awarded just as much in drug sentencing cases as any other case.  For my money that’s the most important way the judgment lowers sentences for meth offending.  Forget starting point; the Court just tinkered with the numbers and let you drop down a band if your role was a bit bystandery.  The real movement is giving you tens of percent sentence discounts for personal factors in drug offending.  The judgment in particular focused on large discounts for addiction, for mental health, and for social deprivation as part of its general freeing-up of personal mitigating factors in drug offending.  It could only do that by explaining how personal mitigating factors could sound strongly in drugs cases, when they previously never did.  Watch this.

In the past, you only got an exceedingly small discount for personal factors.  That was because of a consistent attitude by the Courts which culminated in a Supreme Court case called Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.  The Court of Appeal noted that in Jarden the Supreme Court had said this (at [12] of Jarden):

As the Courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence.

The Court of Appeal had a bit to say about deterrence elsewhere, but that’s for another day.  Here’s what the Court in Zhang had to say about Jarden:

[133] First, given the outcome in Jarden, we do not apprehend the Supreme Court to
have used “subordinated” in any sense implying exclusion of consideration of personal circumstances. Rather, such circumstances are to be weighed in the balance with the needs of deterrence, denunciation, accountability and public protection…

[135] Thirdly, we think considerable caution must be exercised in the expression of broad principles which may diminish the inherently discretionary weighting of aggravating and mitigating factors in stage two of the sentencing exercise. Indeed, it is a qualified discretion in any event. Section 9(2) of the Sentencing Act requires the court to take into account certain mitigating factors to the extent they are applicable to the particular case. Section 9(3) makes clear the list in s 9(2) is non-exclusive. Section 8(g) requires the court to impose the least restrictive outcome appropriate in the circumstances. Importantly, s 8(h) requires the court to take into account any particular circumstances of the offender that mean the sentence would be disproportionately severe. None of these provisions are expressed by Parliament as being inapplicable, or less applicable, in certain classes of crime.

It’s a two-pronged attack.  First, in the finest traditions of intermediate appellate courts everywhere the Court settled on the old “we don’t think that’s what the Supreme Court meant” trick.  That’s great as long as no one calls you on it, but that is 100% what the Supreme Court meant.  If you keep reading past the “subordinated” line in Jarden the Supreme Court makes clear you can take all these other factors into account (no fettering here), it’s just the weight that they will be afforded will be minimal.  Even in Mr Jarden’s case where there were “extreme” personal circumstances “[t]he crucial importance of deterrence requires however that the reduction in sentence be a modest one” (at [14]).

And second, to the extent the Court of Appeal needs to escape Supreme Court precedent (which they should!) the Court just goes one level higher still to Parliament.  Using the shield of Parliamentary sovereignty the Court deploys provisions of the Sentencing Act 2002 to call into doubt the Supreme Court’s observation in Jarden.  Again, fine, until you remember that the Supreme Court considered those same statutory provisions in Jarden and came to a different conclusion, by which the Court of Appeal is bound.

After that, hey presto, the Court of Appeal can say:

[136] It follows that we consider that personal mitigating circumstances relating to the offender, at stage two of the sentencing exercise, are applicable to all instances of Class A drug offending, as in any other offending.

And for just five easy payments of $19.95 I can teach you to do the same.

The result is that flexible approach to stare decisis that I fear might be becoming my thing that I complain about all the time.  The idea that, well, if you asked the Supreme Court today about Jarden they would probably say the same thing as the Court of Appeal did in Zhang, so why bother them with it.  I guess all I’m saying is that the hierarchy of courts isn’t the same thing as asking your parents if you can borrow their car.

Still, don’t mistake what I say.  Zhang v R is a Good Decision™.  It means more compassionate, rehabilitative sentences for those addicted.  It retains stern sentences for commercial meth importations.  It removes strange distinctions for class A drug offending that looked weird a long time ago.  It expressly mentions social and cultural deprivation as a personal mitigating factor.  It’s good that we get some common-sense liberalism from those notorious lefties in the *checks notes* Court of Appeal.  See you out there in this brave new world.

The first case note on Zhang v R: meth sentencing pipe dreams

We don’t know what the Court of Appeal will say in its soon(?)-to-be-released guideline judgment on meth sentencing. (EDIT: now we do!  It’s going to be released on Monday 21 October at 11.30am!)  At the moment the decision is shy (by which I mean it is extremely reserved).

But why should that stop pre-punditry?  My opinions are normally so wildly off base I don’t see why not having read the judgment should hold me back.  If anything, uninformed commentary means I’m *more* likely to be on the mark.

So, with that in mind, here is the first case note on the Court of Appeal’s decision in Zhang v R.  

Wow, what a decision!  We can safely say this was written with all audiences in mind.  Whether you’re anti-prison, pro-deterrence, a fan of judicial sleight-of hand, or an arch-Parliamentary sovereigntarian; truly, there’s something here for everyone to dislike.

Gone are the four bands of starting points in R v Fatu.  Replacing them are twenty-three different overlapping bands of starting point gradation, based on inputs ranging from commerciality, offender role, purity, actual and potential profit, gang affiliation, offender star sign, and the colour of getaway vehicle (if any).  An appendix to the judgment sets out an inputs table, that details a range of multipliers to be determined by the sentencing judge on the facts of a particular case and by reference to seven more “archetypal cases” described in the guideline judgment.  When the right factors are entered it will generate a starting point between 12 months and 35 years.  Do it right and be sure to carry the one, and it’ll take you about four hours per case.  It’s basically the Sainte-Laguë method but for starting point.

Now, as the Court of Appeal noted at paragraph 745, “any slight increase in work by busy sentencing judges will be more than made up for by the transparency to sentence calculation engendered by use of the Court’s new sentencing matrix”.

Personally,  I think the Court of Appeal erred in factoring offender star sign into the starting point calculation.  That is a personal aggravating or mitigating factor and including it in the starting point mix presents a challenge to consistency across defendants.

After calculating the starting point, focus then turns to personal mitigating factors.  The Court of Appeal here has latched on to the legislative fact doctrine like a toddler to a parent’s leg.  Sure, that pesky court hierarchy meant it couldn’t do much about the Supreme Court’s warning in Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 that when it comes to serious drug offending that “[t]he crucial importance of deterrence requires, however, that the reduction in sentence [for personal factors] be a modest one”.

But as Palmer J pointed out in R v Wellington [2018] NZHC 2196 at [8] while deterrence is the legislative aim of the game, just how you go about deterring is in fact very much up for grabs.  Here, the Court of Appeal relied on studies that showed that long prison sentences don’t do a great job of deterring people in the grip of addiction.  Now, whether they should have gone as far as express that finding in the terms they did will be a matter for the wider commentariat (I myself haven’t encountered a judgment with that much swearing in it before).

The focus of sentencing is now – as it should be – the offender’s role and type of meth operation, rather than weight of meth.  There are limits though, and the judgment is interesting for its constitutional dance.  Parliament is boss and the Court of Appeal can’t do anything about the maximum sentence for meth manufacture or importation.  The Court of Appeal can’t do anything about s 8(c) of the Sentencing Act 2002 either.  Parliament says to come down like a ton of bricks on *someone*.  The courts really only have control over what instances they will pull the lever to drop the masonry.  The Court has shown it is willing to take that inch and run 1.6 kilometres with it.

But it all leads to an interesting overall sentencing doctrine from the Court of late, about which more deserves to be written.  This decision shows a willingness to grapple with the realities of meth offending.  That can be compared, usefully I think, with Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 where the Court of Appeal threw the book at perpetrators of domestic violence.  Peculiarly, there is nothing in Hutchison itself directly calling for higher sentences, but the decision has reverberated in the lower courts in a way perhaps not intended.  Then there is Setu v R [2018] NZCA 127 where the Court showed a lack of interest in monitoring sentencing drift in its own Taueki guideline judgment.  I don’t know what we learn from all that put together, but there’s something interesting to be charted on it someday about what interests the Court in sentencing policy and administration and what doesn’t; when it will turn to complex solutions and when it won’t.

There will be lots more to unpack from the judgment in the coming days, and even more after we actually know what’s in the judgment.  And of course, it remains to be seen whether the Supreme Court will instead chooses to adopt the approach set out in the surprising two judge dissent.