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.
FURTHER UPDATE: the Rewiti shuffle was kept open but not applied in two sentencing appeals: Peke-Meihana v R [2019] NZHC 642 and Jones v R [2019] NZHC 1816.
Strictly obiter 