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.

 

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

 

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.

 

The Owl and the Pussy-cat went to sea

In a beautiful pea-green boat,

They took some honey, and plenty of money,

Wrapped up in a five-pound note.

The Owl looked up to the stars above,

And sang to a small guitar,

“Best not discuss the case.”

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.

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.

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.

As the designer of the Court of Appeal and High Court hearing centre in Auckland, I think I know a thing or two about what makes courtrooms truly special.   Without getting too E.P. Thompson about it, the majesty of the law is sustained by the formality of our courtrooms.  It’s therefore my pleasure and, I think, my duty, to share with you what makes the hearing centre such a fine site for the administration of justice.

First impressions count.  We don’t want people to think they’re in some intimidating process.  That’s why to get to the hearing centre you enter a non-descript Queen Street office building past a Unichem Pharmacy and a St Pierre’s Sushi.  We’re going for a Westfield justice vibe.  On Level Two is a LabTests collection centre.  As you ride the elevator up to the correct floor, look at the person next to you.  For all you know they’re there to drop off a stool sample.  That feeling you feel inside?  That’s the anticipation of justice.

Once you make it to Level 11 you’ve found us, as long as you turn in the right direction.  If you go the other way you’re at the ominous sounding “Learning Centre” for the Ministry of Business, Innovation, Employment and Re-Education Camps.

Now, this is where the impressive parts really start.  The lobby immediately invokes hushed tones, principally because there are large signs telling you to speak quietly.  We haven’t soundproofed the place and we don’t want the noise to carry into the courtrooms.  There is a tiny reception desk if you have some questions, and two client interview rooms that used to house circuit breakers and junction boxes.  Without exception every other door is marked with a sign saying “Private”.

Did you know this is where the Employment Court used to sit?  Don’t give too much consideration to the idea that this place wasn’t good enough for the Employment Court.  No, seriously, the Employment Court.

Of course the courtrooms themselves are, I think, very tidy.  No expense has been spared.  By which I mean we made sure to kill every possible expense.  A lot of people ask me, where is the bar in this courtroom?  But what is a bar really?  I think a lot of lawyers would tell you it’s nothing but an installation quote for $2500 plus GST that my manager didn’t approve.

But instead of focusing on what’s missing, focus on what we did do.  We banged up some wood panelling on a few of the walls, and we got a great deal on old sun-bleached curtains from a church hall in Dunsandel to throw up behind the judges.  There’s a crest of course.  A little big some might say; possibly a little big.  The overspend on the crest meant we couldn’t replace the blinds but they remain as a tasteful evocation of the commercial office-origins of the space.

The judges peer out from behind their double screens.  They’re on a raised dais of course, but not too raised.  We’re in an office building, so the ceilings are standard height.  If the judges get much higher they’re going to be hitting the ceiling tiles.  We get them to change some lightbulbs while they’re up there.  And naturally all of this can be neatly observed from the three rows of public gallery seating with economy-class leg room.

At the end of the day it’s important to remember that justice must not only be done, it must be seen to be done.  And there is no denying you can see justice being done.  If that is your benchmark of success, then the hearing centre, as a place where your eyes can visibly observe a hearing, must surely be seen as a runaway success.  Just put from your minds the symbolism that even though the Court of Appeal hearing centre sits 11 floors up, the Auckland High Court courthouse on the hill still manages to rise above it.

Supreme Court staff returning to work this week found the Chief Justice’s chambers now an impenetrable fortress.  Sources understand that Dame Sian spent most of her summer break barricading herself in her chambers, the latest in a series of moves to prevent mandatory retirement this March.

The barricade appears to be constructed mainly of Law Reports, spare furniture stolen from other justices’ chambers, and wooden panelling ripped from the wall of the main courtroom.  It is not known whether the Chief Justice has taken hostages.

Police are now on the scene and it is understood they have already had to trespass from the premises an overly-excited Ted Thomas.

Receipts scattered on the ground outside the barricade indicate purchases of large amounts of bottled water from Thorndon New World and freeze-dried meals from the Kathmandu on Willis Street.  Experts estimate that the supplies could last at least until the end of 2019.

Speaking on condition of anonymity, a fellow Supreme Court justice conceded that he should have seen the move coming: “When Dame Sian oversaw the redesign of judicial robes last year she insisted that they be woven with kevlar, as well as heat reflective lining that defeats infra-red heat scanners.  With the benefit of hindsight that’s going to make it pretty difficult for the Armed Offenders Squad to get her out of there.”

Expert Police negotiators expressed pessimism at being able to talk around the Chief Justice.  “We’ve been reviewing her Honour’s judgment in Hamed v R and it’s plain we’re dealing with someone with extremist views.”

Granting an exclusive interview to Strictly Obiter and all passersby, the Chief Justice shouted from the window of her first floor chambers down to the street: “You can take this office from my warm and not-yet-dead 70 year old hands.  Let’s see you outvote me 4-1 this time, you bastards.”

Her Honour’s barricade follows the Chief Justice’s removal from pipes over the Terrace Tunnel in central Wellington after a 10 hour standoff.

 

Strictly Obiter gets an exclusive lifestyle interview with the judges of the Supreme Court of New Zealand before they head off on a summer break.

 

Where will you be spending your holidays?

Ellen France J (for the Court): We would prefer to resolve this question in a case where it arises squarely on the facts.

 

What is on your summer reading list?

O’Regan and Glazebrook JJ (for the Court): We agree that it is summer but we propose to leave open the question of whether reading is appropriate.  We also leave open the question of what reading would take place if this Court held that such activity was lawful.

 

Which do you think has been the most significant case decided by the Court this year?

William Young J (for the Court): Our answers to the previous questions mean it is not necessary to determine this issue.

 

What will be on the menu for Christmas day?

Glazebrook J (for the Court): As we have not had the benefit of full argument on this point we will not address that here.

 

What is the secret to a relaxing break?

William Young J (for the Court): This dispute was resolved between the parties following the hearing before us but before judgment was issued.  Nevertheless it involves a matter of public and general importance such that the Court has determined to issue a judgment in this matter (continues for 230 paragraphs).