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.

 

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.

Real Jock Anderson headline or pale imitation?

Cheese
*chef’s kiss emoji*

 

I genuinely freaking love the headlines on Jock Anderson’s lawyer profiles on the Law Society website.  I don’t know whether he writes them, or an editor does.  But whoever does takes a Go Big Or Go Home approach to jamming every interesting fact possible into a single sentence.  The resulting foie gras headlines sit atop interviews where interesting lawyers doing interesting legal and non-legal work get asked what car they drive.

Some of the great examples include Slow-cooking military enthusiast fears loss of courtroom history and Black belt’s fish supper plans for Plato and the President and Rangitoto swim challenge for tennis-ranked farmer’s daughter.

So good they practically write themselves…

Below are 14 headlines.  Seven are from real Jock Anderson lawyer profiles.  Seven I have just made up.  Without searching the Law Society archive, can you pick the real headlines?

  1. Human boarding pass keen on Kiwi Godfather role

  2. Classic car collecting QC kept young by grandchildren and lawn bowls

  3. Nomadic adventurer fancies saki-sipping hot soak in snow

  4. Find the best Nanny, says tramping bass-player sailor

  5. Skydiving Sunday School teacher finds lessons in West Coast community

  6. Yorkshire aviator lands citizenship pineapple lump reward

  7. Give it a go, says Welsh taxi driver turned Shortland St barrister

  8. How skateboarding ex-GI re-enlisted in new life

  9. First Venezuelan-born lawyer keen on rodeo and great kiwi baches

  10. Bagpiper with growing family looks forward to space adventures

  11. Dibbly-dobbly bowler didn’t reckon on skiing lifestyle and good clean fun

  12. What an Irish cottage restorer learned in traffic court cauldron

  13. How multi-lingual globe-trotting glass artist conquered legal hurdles

  14. Blackstone scholar and triathlete will stick to the lattés.

 

Answers below.

 

 

 

 

 

 

 

 

 

 

 

The genuine article

1. Human boarding pass keen on Kiwi Godfather role

3. Nomadic adventurer fancies saki-sipping hot soak in snow

4. Find the best Nanny, says tramping bass-player sailor

6. Yorkshire aviator lands citizenship pineapple lump reward

8. How skateboarding ex-GI re-enlisted in new life

12. What an Irish cottage restorer learned in traffic court cauldron

13. How multi-lingual globe-trotting glass artist conquered legal hurdles

 

Pale imitations

2. Classic car collecting QC kept young by grandchildren and lawn bowls

5. Skydiving Sunday School teacher finds lessons in West Coast community

7. Give it a go, says Welsh taxi driver turned Shortland St barrister

9. First Venezuelan-born lawyer keen on rodeo and great kiwi baches

10. Bagpiper with growing family looks forward to space adventures

11. Dibbly-dobbly bowler didn’t reckon on skiing lifestyle and good clean fun

14. Blackstone scholar and triathlete will stick to the lattés

 

The Giant and the Swan

Once upon a time there was a giant.  Its giant arms stretched around the world.  Its giant legs stepped over oceans.  The giant wore a white collar and top drawers.  It had a giant hunger that it fed by eating blue chips that were as big as its giant head.

The giant had many servants in many countries.  They were good at writing words and speaking prettily.  The words had helped the giant grow big.  The giant had grown very big indeed, but it was not everywhere.

In a small corner of the world there lived a swan.  The swan was yellow and black, which not many people thought was great but that’s not the point of the story.  The swan was pretty good at… construction law I think?  One of its finest feathers used to be a skilled journalist’s quill.  Another of its feathers always advertises his face in LawTalk which always struck me as a bit weird but it must be working for him I guess.  This metaphor seems to be getting away on me a little.

The giant asked if the swan would work with it.  The swan was not sure.  The swan remembered that another giant – one who played the pipes – had come to the small corner before.  It was still there, but its pipes no longer sounded loudly.  Recently, the piper had forgotten everything it knew about medicine.

But the giant was clever.  It sent a swarm of bees to the swan.  The bees surrounded the swan.  The bees buzzed and buzzed at the swan.  They said things like “Clients have explicitly identified the New Zealand market as a priority and this combination would see the firms able to meet client needs both in New Zealand and around the globe” and “With our clients increasingly operating across Australasia and beyond, this global platform will enable us to deliver seamless service to existing clients operating in the region and globally.”

The swan listened to the buzzwords and was convinced.  The swan would work with the giant.

In this brave new world the giant asked the swan to do many things.

“Would you be so kind as to set up a table?”

“Could you fetch me a tablecloth?”

“Bring me a plate, and a knife and fork.”

The swan did as the giant asked.  These were, after all, synergistic client solutions.

Then the giant picked up the swan and placed it delicately on the plate.

“Little swan,” it said, “The people who write my words and speak so prettily for me tell me that it is only royalty who may eat swans.”

“I’d heard that too,” said the swan.

“It’s not true.”

And after that the giant stretched its arms and legs a little further including in the small corner where the swan used to be.

A draft Court of Appeal Practice Note regarding legal tests on appeal

  1. This Practice Note takes effect from 10 June 2019.
  2. The Court will revisit the test on appeal in every case.
  3. Written submissions in all cases should address the Court on why the test on appeal should be changed.
  4. When advocating for a type of appeal, counsel should bring to the attention of the Court any contrary authority so that the Court can overrule said authority.
  5. The Court will change the test on appeal for any particular type of appeal not less than once every eighteen (18) months.
  6. Any appeals brought on the grounds that a lower court misapplied a test on appeal are themselves to be treated as an appeal against a discretion if filed in an odd-numbered month and as a general appeal if filed in an even-numbered month.
  7. Clause 6 is subject to Clause 5.
  8. There is a rebuttable presumption that, in any instance where Parliament has described an appeal as an appeal against a discretion, this is to be treated as conferring a right of general appeal.
  9. Appeals from the Court Martial Appeals Authority will be treated as general appeals, except in instances where a general appeals in which case they are appeals against a discretion.
  10. Advantages held by the first-instance judge will be emphasised or diminished as the justice of the case requires.

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.