This week the Court of Appeal released its decision in Lundy v R [2018] NZCA 410 in which it said that expert evidence about mRNA that was admitted at Mr Lundy’s retrial was inadmissible.  That judgment mentioned, but did not dwell on, the fact that a differently constituted Court of Appeal had ruled the evidence admissible in an earlier pre-trial admissibility challenge (Lundy v R [2014] NZCA 576).  Awkward.

Regardless, said the latest incarnation of the Court of Appeal, the inadmissible evidence did not lead to a miscarriage of justice.  There was other evidence available to support a conviction.  It applied what is called “the proviso” and upheld Mr Lundy’s conviction.

Since then, there have been murmurings about an appeal to the Supreme Court.  I divert briefly here to say I’m not sure I immediately see on what grounds the Supreme Court would grant leave.  The two most likely grounds (and even then…) seem either to have another look at the proviso (although that seems reasonably well-settled), or else allow leave on the general miscarriage ground (but they’d probably want to restrict the points on which they allow argument rather than allow a complete rehearsal of all the points taken in the Court of Appeal).

Assuming an appeal is taken, and assuming leave is granted, who would hear the appeal?  The available pool of justices seems slim for the following reasons.

The current permanent Supreme Court bench is as follows:

• Elias CJ
• William Young J
• Glazebrook J
• O’Regan J
• Ellen France J

Any appeal will be heard next year, at which point Elias CJ may well be retired (her Honour retires in March 2019), but she will presumably stay on as an acting Judge (and will be first off the rank for acting Judge according to this policy).

The three likely replacements for Elias CJ are:

• Kós P
• Winkelmann J
• Williams J

And then remaining on the potential acting Judge rank are (in order):

• Arnold J
• McGrath J (he is listed on the Court website but it may not be updated.  He is not listed as an acting Judge in the front of the New Zealand Law Reports.)

Having set up our Guess Who board, let’s start eliminating contenders.  Remember, we need five to sit on a Supreme Court panel.  I am also assuming that having sat on a previous hearing will be enough for disqualification.  It may be that the Court takes a tougher line on disqualification.

Did your Supreme Court justice sit on the Privy Council board that allowed Mr Lundy’s appeal in [2013] UKPC 28, [2014] 2 NZLR 273?

Eliminate Elias CJ from contention.

Did your Supreme Court justice sit on the most recent Court of Appeal decision dismissing Mr Lundy’s appeal in [2018] NZCA 410?

Eliminate Winkelmann J from contention.

Did your Supreme Court justice determine that the mRNA evidence was admissible at pre-trial first instance on the retrial following the Privy Council decision?

Eliminate Kós P from contention.

Did your Supreme Court justice determine that the mRNA evidence was admissible at pre-trial appeal on the retrial following the Privy Council decision in [2014] NZCA 576?

Eliminate Ellen France J from contention (although she was in the minority that would have allowed the appeal).

Did your Supreme Court justice sit ALL THE WAY BACK IN 2002 on Mr Lundy’s first appeal to the Court of Appeal in (2002) 19 CRNZ 574 (CA)?

Eliminate Glazebrook and McGrath JJ from contention.

Do we have anyone left?

Who does that leave?  The best case scenario for available judges is that Williams J gets promoted to the Supreme Court following Elias CJ’s retirement.  The permanent members who can sit will then be William Young, O’Regan and Williams JJ.  Assuming Arnold J can still be drawn upon (his acting warrant lasts until 11 April 2019 but he might be authorised to sit on the proceeding), that makes four.

So it would seem likely that the Supreme Court would draw on the next most senior Court of Appeal justice (as per their stated policy online – although not expressly required by the Senior Courts Act 2016).  Except they can’t!  Because that is French J, who also sat in the [2014] NZCA 576 Lundy proceeding.  That leaves Miller J.

But worst case would be if Winkelmann J goes to the Supreme Court in place of Elias CJ.  That means that only William Young and O’Regan JJ can sit.  They can draft in Arnold J (again, assuming his warrant gets extended or he is otherwise authorised to sit).  Then Miller J comes in from the Court of Appeal to take it to four members.  But then the next two members of the Court of Appeal are not eligible – Cooper and Asher JJ both sat in the most recent Court of Appeal decision.  So Brown J could end up sitting on the Supreme Court for the hearing of any Lundy appeal.

 

EDIT (18 September 2019): As always, I’m not quite right about these things.  Miller J did sit.  In the time before the post and the hearing, Winkelmann and Williams JJ both went to the Supreme Court.  Arnold J sat as an acting judge.  The panel was William Young, O’Regan, Williams, Arnold and Miller JJ.  But, I was significantly wrong in another respect because I did not obey the first rule of legal work: “Read the bloody statute”.  Section 110(3) provides that “Only 1 Court of Appeal Judge appointed under subsection (1) may be present at a sitting of the Supreme Court for the hearing of a proceeding”.  So there was never a chance of Brown J sitting.

Introduction

In Solicitor-General v Heta [2018] NZHC 2453 Whata J upheld a sentence for violent offending that incorporated total discounts for personal factors of 40%, and then applied a further 25% discount for a guilty plea.

The primary feature of the sentence and appeal was the impact of the cultural background report for Ms Heta, produced under s 27 of the Sentencing Act 2002.  The report detailed Ms Heta’s life and the very considerable personal traumas and challenges she had faced.  On appeal the questions included what discount (if any) it warranted, and whether the level of discount afforded by the District Court Judge (30%) was prohibited by Court of Appeal authority.

Justice Whata reached his decision in Heta through the application of orthodox sentencing principles.  The decision discussed the potential for discounts based on systemic Māori deprivation but, crucially, did not purport to give those discounts in this case.  Instead, Whata J laid out a path through Court of Appeal authority and gave strong guidance on what type of evidence would be necessary for discounts in future cases.  None of that was set at an unachievable level.  Viewed in this light, Heta may not be the breakthrough case about cultural background reports (at least on a strict application of stare decisis).  But it will be the roadmap for the next round of sentencing decisions that use s 27 of the Sentencing Act 2002, one of which will inevitably be taken on appeal to the Court of Appeal.

Finally, an early disclaimer that I cannot and do not write with a kaupapa Māori approach to this topic.  I can only show my respect by disclaiming any authority in that regard.  When I see more commentary on this case from persons more qualified than me, I will link them at the bottom of this post.

Cultural background reports – an exercise in obiter

Justice Whata upheld Ms Heta’s end sentence as not manifestly inadequate.  That end sentence of three years and two months’ imprisonment included a 40% reduction for personal factors and a further 25% discount for guilty pleas.  The District Court Judge had given a 30% discount “to take into account the background and cultural information in [the cultural background report]” (Heta at [11] quoting the District Court decision).

In the final paragraphs when looking at the correctness or otherwise of the discounts in this case, his Honour did not in fact endorse the structure or reasons for the discount in the District Court (at [64]-[67]).

Instead, his Honour fell back to the time-honoured refuge of appellate jurisprudence of “well, even if the reasoning was wrong, you could have got to that result and here’s how”.  Justice Whata held that what would have been justified on the facts of this case was:

• A discount for personal trauma of 5-10%.
• A combined discount for positive engagement in restorative justice and remorse of 20%.
• A discount for capacity for rehabilitation of 5-10%.

His Honour cited authority for all of those discounts (see footnotes 47-49).

This is crucial for understanding the decision in Heta.  Ms Heta did not get discounts simply by having a cultural background report.  Instead, in Ms Heta’s case, and on Whata J’s judgment the discounts were for entirely orthodox reasons.  They are factors justifying discounts that are applied every day.  It just so happened that in this case the reasons for those discounts were to be found in the cultural background report.  Or, as Whata J put it, “[t]he report identifies several key facts that directly bear on both culpability and rehabilitation” (at [64]).

On that view, the lengthy discussion of cultural background reports has to be seen as strictly obiter (hey, that’s the name of the blog!).  The judgment was an exercise in laying out a sensitive and liberal approach to cultural background reports.  It pre-emptively grappled with Court of Appeal authority in a way that the High Court can sometimes do more easily than the District Court.  The result is that the District Court now has a shelter from Keil v R [2017] NZCA 563 and Mika v R [2013] NZCA 648 – two Court of Appeal authorities that, on their face, offer(ed) obstacles to recognising the full potential of cultural background reports.

What the cultural background report did not do

What the cultural background report in Heta did not do was expressly link factors that Whata J broadly referred to as systemic Māori deprivation to any element of causation in the offender or offending.  His Honour accepted statements from the Court of Appeal that any discount in sentencing that there be a causal nexus between personal difficulties and the offending in order to attract a substantial discount (see Nelson v R [2014] NZCA 121 at [28] cited in Heta at footnote 35).

As Whata J put it:

[49] … the cogency of any s 27 information, and the likely presence of systemic deprivation and strength of the linkages between (among other things) that deprivation, the offender and the offending, together with the availability of rehabilitative measures to specifically address the effects of systemic deprivation, will be critical to the assessment.

In other words, you’ve gotta show the link.  No link, no discount.

Not much will be required.  It “need not be elaborate” (at [50]).  The symptoms of systemic Māori deprivation are “reasonably self-evident … [b]ut there must be some evidence identifying the presence of systemic deprivation in the offender’s background and linkage to the offending” (at [50]).

But this cultural background report did not expressly show the link between systemic Māori deprivation and Ms Heta’s offending (although it was very detailed in every other respect – see [13]-[20]).

I think this is why Whata J fell back to the standard grounds for discount – remorse, rehabilitation etc.  But to be fair his Honour was more than willing to meet halfway:

[65] … while the s 27 report does not overtly draw linkages between systemic Māori deprivation, the offender and the offending, its presence in Ms Heta’s life can be reasonably inferred.  In any event, [the District Court Judge] was aware of other reports produced by Ms Quince which refer to the effects of colonisation on Māori communities, and the Solicitor-General accepts that it was appropriate for the Judge to take this factor into account.  It provides further justification for a cumulative discount at the higher end of the available range to better reflect Ms Heta’s diminished relative culpability.

The passage quoted above has to be seen as simply bolstering the discounts already identified.  It is reassurance or cross-checking; not the actual basis for the discount.  By this point Whata J had already identified the basis by which a 40% discount was justified.

That is reinforced by footnote 50 of the judgment which states:

Robust evidence of intergenerational systemic deprivation that is causally connected to the offending might provide a basis for a distinct discount or differential sentencing response.  As the s 27 report did not explicitly identify this factor I say no more about this.  Moreover, the scale of discount this factor might attract is properly a matter for Senior Appellate Court assessment.

Ms Heta did not receive a discount for intergenerational systemic deprivation.  She did not even receive a discount for intergenerational systemic deprivation that had a causal connection to her offending.  She received a discount for her remorse, her participation in restorative justice, her guilty plea, her personal trauma, and her capacity for rehabilitation.  It is difficult to see what is novel – let alone unjustified – about that.

An uneven Keil

Another aspect of Whata J’s decision was his distinction of the Court of Appeal’s decision in Keil v R [2017] NZCA 563.  In Keil the Court of Appeal rejected a discount based on the proposition that Mr Paul committed his violent offending in the course of muru – an “effective form of social control, restorative justice and redistribution of wealth among relatives,which seeks to reduce the transgression with the end goal of returning the affected party back to his or her original position in society” (Keil at [51]).  Mr Paul had felt obliged to go on the expedition where the offending took place as part of contributing to the muru.

In  Keil a cultural background report identified several powerful factors but the Court of Appeal held that they could not justify a significant discount (Keil at [58]):

[58] However, the seriousness of Mr Paul’s offending necessarily subordinated the purposes of personal rehabilitation and reintegration to the wider societal purposes set out under s 7. The requirements of accountability, denunciation and deterrence had to predominate in an end sentence which struck a balance between these competing goals. Our sentencing regime cannot be seen to condone a particular group’s use of violent force to exact physical retribution. Similarly, cultural norms cannot excuse that conduct for some groups but not for others. While those norms may help to explain, they can never justify offending of such severity as occurred here.

In Heta Whata J interpreted this as “an important reminder that in sentencing violent offenders, countervailing aggravating factors may constrain the scope of any discount for personal mitigating factors.  But, it remains incumbent on a sentencing judge to weigh the facts of the particular case” (at [59]).

When it came to applying that to the facts of Ms Heta’s case Whata J held (at [66]):

[66] I accept that the scale of discount in case [sic] involving very serious violent offending of the present kind would usually be reduced by the countervailing factors mentioned in Keil.  But critically in this case recognition of deprivation and personal trauma does not involve condoning the offending.  Rather it helps to explain it.

The dividing line between “condoning” and “explaining” offending must exist but its location remains unclear.  One possible effect of Whata J’s holding is to limit Keil v R to cases where the offending itself is an act capable of being explained by reference to cultural reasons.  That is, those cases where an offender claims their offending was part of, or stemmed from, a positive cultural practice.  Courts cannot recognise muru as a licence to offend, and fear giving a discount for cultural reasons in response would be to “condone” it.

But Whata J said Ms Heta’s case was a different case.  It frees up discounts to be given in cases where cultural factors bear on the offender (rather than where they purport to be a basis for the offending).  A person like Ms Heta bears the brunt of systemic Māori deprivation and the damage that causes in her life and the lives of people like her. Her offending did not arise in the context of a cultural practice, but broader cultural effects (or effects on her culture which in turn affect her) should be recognised and can justify discount.  The offending is acultural, but the offender is marked by the effects of systemic Māori deprivation, and that must be recognised.

The dividing line is not a clear one.  Mr Paul’s offending can be condemned, but Mr Paul can still be understood as a person who began his night with muru – and not offending – on his mind.  That bears on Mr Paul because of the effects culture plays and not in a way that he chooses.  In other words, without too much difficulty you can let muru explain but not condone Mr Paul’s offending.  Framed that way, his case may sound closer to Ms Heta’s.

And might Whata J’s dividing line have perverse outcomes?  It risks limiting recognition of core, positive cultural practice of any culture when it comes to mitigation of sentence.  It is possible that cultural sensitivity may require recognition that certain offending arose in the context of a positive cultural practice.  If Keil v R imposes that limit then the Court of Appeal will need to readdress that.  But Whata J’s distinction does not confront it.  Instead it sidesteps it.  That is not a criticism – plainly Keil had to be overcome and his Honour’s technique did that nicely.  The need for the sidestep might demonstrate though, that the Court of Appeal can come up with a better articulation than they did in Keil v R.

In any case, in Heta the discounts were given for reasons that, strictly speaking, were not cultural in the traditional sense.  The Court of Appeal’s warning in Keil simply did not apply to Ms Heta’s case.  The fact that Whata J opted to show a way in which Keil v R could be distinguished speaks to his Honour’s broader views about the use of cultural background reports and the use of s 27.  For now, it provides a way around the holding in Keil v R providing that the offending does not arise in the context of a cultural practice.

The future

The cultural background report provided further information that allowed Whata J on appeal to identify as providing available discount factors.  It indicates just how important cultural background reports can be.  If this report was not available then the Whata J would not have been able to draw upon it to identify those factors.

However the decision identified what a cultural background report had the potential to further provide.  A report that articulates a causal connection between systemic Māori deprivation and the offending or offender in a particular case has the potential to provide a standalone discount.  Although any such course will have its own challenges and likely end up in the Court of Appeal, Whata J’s judgment will be an important stepping stone on the way.

The C word is “constitution”.  Sorry.

On 10 August 2018 Chief Justice Dame Sian Elias gave Maxim Institute’s annual Sir John Graham Lecture.  Her Honour has given speeches in the past that have attracted controversy, and with less than a year to go in her tenure my main motivation for attending was hoping for Dame Sian to give the speech equivalent of the ending of Butch Cassidy and the Sundance Kid.

Alas, in that respect the speech did not contain anything truly controversial, although her Honour indicated she would not resile from earlier comments.  Early on she said that she had reviewed her 2009 Dame Shirley Smith address – the “Blameless Babes” speech – and on reflection while “talking about penal policy is one of those things that a sensible Chief Justice would avoid … everything I said in 2009 is what I would want to say today.”

So, no entry into the fray of politics.  The closest things came was a quote from TS Eliot that tradition “cannot be inherited, and if you want it, you must obtain it by great labour.”  By using that as a motif in the speech the Chief Justice got to repeat the words “great labour” several times to a room full of Maxim Institute types.  Fantastic!

Speaking of which, the Maxim Institute people were… strange.  References to God in their greetings, but with an intensity that tended towards the Scientological.  The speakers there rattled off abstract nouns like they were trying to name the Seven Dwarfs.  Maxim Institute, we were told, stands for freedom, justice, compassion, truth, dignity, Sneezy and Doc.  As for the audience that the event attracted, well, there was more privilege in the room than Part Two, Subpart Eight of the Evidence Act 2006.

The text of the address, and the video, will be publicly available soon, so it’s not my intention to rehearse it all.  I’ve put some soundbites to topics below,which mainly come from the Q + A.

The main theme was on the need for work (great labour) to preserve our unwritten constitution and the rule of law.  Her Honour attributed calls for a formalised written constitution as the product of people who feel our current constitution as not working for them.  Small changes to our constitution work like a cat’s cradle and risk pulling other parts of it out of shape.  A classic Elias-ism and one that underpins her judicial philosophy, I think – so many times her dissents are born of conservatism rather than radicalism.  The fact that she dissents masking a Canute-like stand.  Her speech last year on managerialism in criminal justice was good at revealing a lot of that.

She also spoke about the dignity of a hearing and drew on Jeremy Waldron’s work a lot.  It is incumbent on judges to bring their A-game to the Dog Control Act cases, in the same way they bring it to the cases that are constitutional moments.  Constitutional moments, she explained, are the hearings that judges would rather avoid given the risk of damage to the constitution at critical junctures.

I’ve been thinking a lot about the speech over the weekend and my lasting reaction is just how sad it is that mandatory retirement will mean that we lose the Chief Justice next March.  She has been in her role and heading the Supreme Court long since before I started studying law.  Her speech was lively and reflective and she seemed a long way from retirement by choice or necessity.  Her departure will be our loss.

Selected quotes (not made up)

The Chief Justice on:

The Foreshore and Seabed decision: It was “inevitable that it would take time for that case to be absorbed” but I would have thought “a little more time could have been taken for it to be absorbed”.  It was the type of case that as a judge you simply don’t want to have to decide and “if there was anywhere to hide, you would”.

The capacity for civic engagement/a personal attack on the author of this blog: Today, people’s “attention span for engagement seems Twitter-cised.”

The fact that 50% of Maori men born in 1988 have a criminal record: It’s “not something we can continue to live with”.

Whether a supreme, codified constitution is desirable: “I don’t think so, if we are prepared to understand our constitution and prepared to work at it.”

Sexism in law: “I thought we’d come a lot further”.  I’m “dismayed” at the recent stories.  It is “a cultural impediment that we need to face up to”.  The fact there aren’t more women in seniro positions is “something that bothers me a great deal”.  “I personally think it’s time for women to get really angry”.

The law having to come to grips with AI: “I’m retiring in March.”

The establishment of the Supreme Court: “It was overtime”. “It will be the work of generations”. “It gives us the opportunity to develop our own voice”.

Good news everybody

The New Zealand Law Society is setting up a new National Standards Committee (it has one already but the legislation provides for two) (and see pedantic legalism at the end of this post).  You may remember the original and current National Standards Committee from when it broke the land speed record for backpedaling.

NZLS is advertising for lawyer members for the new NSC here.  The focus of the new NSC is “to deal specifically with complaints about harassment and bullying in the legal profession.”

This is a no-brainer from NZLS’ perspective:

• First, and perhaps most importantly, it is another way in which NZLS can be seen to be Doing Something.  In terms of concrete steps it certainly rates more highly than “we made a poster“.
• Second, and I mean this genuinely, this has the potential to be really good.  The current NSC deals with serious complaints (as befitting the national body).  This is an important symbolic step.  But more than that, it will collate these types of complaints into one body.  That body, through its membership and the experience it will gain, has the potential to be half decent at dealing with these complaints.  It could also lead to better, and more consistent practice in dealing with what will be vulnerable complainants.  There will be opportunities to adapt and improve the current administrative practice to make the complaints process more responsive to these types of complaints.
• Third, as with all Committee processes, Committee decisions are independent.  NZLS gets the benefit of being seen to be doing something, while gaining the ability to say that any individual decision by the new NSC is not something it has (direct) control over.

If all of this sounds slightly cynical I don’t mean it to be.  I don’t know if this has been in the works for a while but there has been publicity about this since mid-February with the Newsroom story.  And as has been pointed out articulately by people like Steph Dyhrberg in this article, and someone a lot dumber in this nonsense, lawyers have known about this for a long time.  Perhaps NZLS have been considering this for a long time, I’m not sure, but if the Newsroom story pulled the rug out from under NZLS then this new NSC is the equivalent of at least getting around to placing a call to Carpet Court.

Get to the point

So far, so background.  The purpose of this short post is to argue why NZLS should consider seriously appointing a lawyer member that is as junior as the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (Regulations) will permit.  I think it is an important aspect of representation that will enhance the legitimacy of the new NSC.

Regulation 15(1) requires the lawyer members to have not less than five years experience as a lawyer.  Lawyers will be familiar with those types of experience clauses for appointment of judicial officers.  In theory, one could become a High Court judge after seven years of practice but that is exceedingly unlikely to happen.  The practical reality so far is that persons with a lot more experience than five years are appointed.  NZLS itself describes the lawyers appointed to Standards Committees as “senior practitioners“.

For the new NSC, NZLS should read the five year requirement literally.  Appoint a lawyer still in their twenties to the NSC.  There are a bunch of people that have practiced from age 23 or so.

I understand the traditional thinking on appointing senior persons to Standards Committees.  If we are going to ping each other for unsatisfactory conduct or refer each other to the Tribunal for misconduct then we want those decisions to be made by persons with perspective, experience, and who are respected in the profession.  But to my mind, a wider account of legitimacy-through-representation is required.  A body tasked with dealing with the problem should represent both complainants and respondents.  Furthermore, I am not saying the entire new NSC needs to be lawyers fresh from Profs.  Indeed, the current Regulations make that impossible.  All I am saying is that ensuring an appropriate age-mix will be an important consideration when deciding membership.

It is not tokenism to say that I would be more willing to complain knowing that the NSC wasn’t full of people who were practising when Sir Ronald Davison was Chief Justice.    Many complainants will find it difficult enough to complain about these matters as it is.  In addition, the new NSC itself will be assisted by membership that can identify more easily with persons who are, statistically, more likely to be affected by this conduct.  Finally, younger members of the profession will have greater confidence in the new NSC’s decisions if they know that its decisions were made, in part, by persons who have the same lived experiences in the profession as they do.

NZLS also wants the following qualities for members of the new NSC:

Experience in dealing with unacceptable conduct in the workplace, either directly or through the delivery of support or guidance, is required. Previous experience on a regulatory committee is also an advantage.

There will, I hope, be many young lawyers in positions of mentoring or support programmes within their firms.  Official experience should not be the only thing that counts here.  The Bazley Report highlighted the story of a young solicitor who went above and beyond to support the summer clerks at the centre of the incidents.  No HR training can beat that sort of practical experience gained from being placed in such an invidious situation.  As for experience on a regulatory committee, well, let the other members of the Committee bring that experience.

As the results of NZLS’ Harassment Survey made clear, negative workplace behaviour (what a euphemism!) is borne disproportionately by women, by minorities, and by young persons.  I am hopeful (confident, even) that the appointment of the NSC will reflect a demographic mix reflecting both the make up of the profession and those persons affected by the conduct the Committee is aimed at addressing.  The purpose of this post is not to elevate the concerns for young lawyers above those of anyone else affected by this type of conduct.  Rather, it is motivated by the risk that the traditional thinking about appointing “senior practitioners”, combined with the five year experience requirement (which usually means far more than five years) means that the Committee will lack representation for young lawyers.

All members of the profession are needed to address these issues.  Young people should not be overlooked because of traditional conceptions that Standards Committees should be senior practitioners.  Appoint someone in their goddamn twenties.

Pedantic legalism

Technically, the second National Standards Committee already exists.  It was brought into existence under reg 12(1)(t) of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (Regulations). Currently it is not “operational” but can be made so under reg 12(2) of the Regulations.  The “operational/not operational” distinction permits states of dormancy meaning NZLS doesn’t have to run more Committees than it needs, while allowing capacity in case the number of complaints increases.  A complaint may only be referred to an operational Standards Committee: reg 13(2) of the Regulations.

Introduction

In November 2017, the Supreme Court released its decision in Osborne v Worksafe New Zealand [2017] NZSC 175 (2017) 15 ELRNZ 365 (Osborne SC). The agreement between Worksafe and Mr Peter Whittall for the withdrawal of charges in exchange for a voluntary payment of $3.41 million to victims of the Pike River disaster was an agreement to stifle the prosecution and was unlawful.

The Supreme Court’s decision presents challenges to the legality of the Police’s Adult Diversion Scheme (diversion) – a scheme where often charges are withdrawn against defendants in exchange for the payment of money to victims or charities.

Osborne

Mr Whittall had faced charges under the Health and Safety in Employment Act 1992 as a director of Pike River Coal Limited (PRCL). As a result of the Pike River disaster that claimed 29 lives, PRCL was found guilty of health and safety charges and ordered to pay $3.41 million in reparations to the survivors and families of the Pike River disaster.  PRCL was in receivership and could not pay.

Mr Whittall (through his counsel) offered to pay the $3.41 million to the survivors and families if the prosecuting agency, Worksafe, did not proceed with the charges against him. Mr Whittall was also willing to meet with the families and survivors and express his sympathies.  There was a period of negotiation.  Worksafe sought legal advice.  Ultimately, Worksafe accepted the agreement and offered no evidence on the charges.

Two family members of the disaster victims sought judicial review of Worksafe’s decision.

All courts and all parties agreed that a payment that was solely in exchange for the withdrawal of charges is unlawful (Osborne SC at [70] and see the cases cited at footnote 69). A person cannot buy their way out of criminal charges.  The issue was whether Mr Whittall’s agreement was an agreement to stifle prosecution (and therefore unlawful) or involved a permissible exercise of prosecutorial discretion.

The Court of Appeal held that there was no agreement to stifle the prosecution (Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 (Osborne CA)). The Court’s conclusion was based on a number of contextual factors.  These included that it was Mr Whittall (and not Worksafe) who suggested the payment; that the Worksafe official who approved the agreement had not taken part in the negotiations and made the decision with a “fair and honest mind” (Osborne CA at [71] citing Jones v Merionethshire Permanent Benefit Building Society [1892] 1 Ch 173 (CA) at 183); that the decision was taken in light of an assessment of a low likelihood of success at trial; reparation was unlikely to be ordered against Mr Whittall; and that simply because there had been a negotiation did not mean that a bargain had been struck (at [68]). A “conditional reparation undertaking” could be a legitimate factor in the final decision to prosecute (at [68]).

The Supreme Court disagreed. It found that none of these factors could mitigate what was at its heart a payment of money in exchange for the withdrawal of charges.  As Elias CJ (writing for herself, William Young, Glazebrook and O’Regan JJ) stated:

[93] The payment to be used for reparations was conditional on the withdrawal of the charges. This “central arrangement” had been acknowledged by and known to WorkSafe and its advisers throughout. It was the essence of the payment arrangement, treated as such in the 7 December exchange of correspondence … Offering no evidence was understood to be “the essential feature” on which the proposal to pay reparation was based. No formal offer was presented on behalf of Mr Whittall until WorkSafe had indicated through its counsel that the essential exchange would not be rejected out of hand. It was immaterial that it was Mr Whittall who put forward the conditional reparation payment in the first place. …

For the majority, the presence of the withdrawal of charges on one side, and the payment of money on the other, meant the arrangement was an impermissible bargain (at [94]).

Writing separately, Ellen France J agreed that there had been an agreement to stifle prosecution but added that she “would not want to foreclose for consideration where it arises the place of reparation in prosecution decisions. In other cases the approach may not always be as clear cut as this one” (at [106]).  It is unclear whether her Honour was referring to diversion, though the comments seem prescient.

Diversion

Diversion is a Police initiative. The purpose of the scheme is described in the Adult Diversion Scheme Policy (Policy) at 3 (accessed 22 January 2018):

The Police Adult Diversion Scheme (diversion) is a lawful way to exercise prosecutorial discretion instead of full prosecution through the court system. It is an alternative means of processing some offences and/or offenders through the courts. …

Diversion enables eligible offenders to complete diversion activities within a given timeframe to avoid both a full prosecution and the possibility of receiving a conviction. This means that judicial time is able to be reserved for more serious offences and offenders.

The Policy describes the primary purposes of the diversion as rehabilitation and reparation (Policy at 4). The Policy gives examples of reparation as the payment of money to compensate a victim, making good damage done to property, and writing an apology letter (Policy at 4).

Diversion is offered to (usually) first time offenders who have been charged with low level crimes. A defendant must be willing to accept responsibility for their actions before diversion will be granted.  The Police will also seek victim input.

If a diversion officer deems an offence and offender suitable for diversion then the officer draws up a “diversion agreement”. Among other things the diversion agreement must include (Policy at 18):

• the offender’s acceptance of responsibility;
• the agreed diversion conditions;
• a recognition that if the diversion conditions are completed then the diversion officer will withdraw the charge.

One of the possible diversion conditions is payment of money (either to the victim directly as compensation, or as a donation to a relevant charitable organisation). Diversion conditions are selected by the diversion officer.  That is, they are presented by the prosecuting organisation as the conditions that, if fulfilled, will result in a prosecution being withdrawn.  A defendant signs the written diversion agreement if they agree with it and then fulfils the conditions.  In the 2016/2017 financial year, 4,589 defendants were granted diversion (Police Annual Report 2016/2017, at 60).  The benefits of diversion include “the avoidance of stigmatising processes such as prosecution and formal court orders [and] an expedient and low level response” (N Lynch Youth Justice In New Zealand (2^nd ed, Thomson Reuters, Wellington, 2016) at [5.8] in the context of diversion for youth but applicable to adult diversion).

Not every diversion arrangement will involve the payment of reparation. For example, the offence may not have an identifiable victim to whom money could be paid.  However, given that reparation is a primary purpose of diversion, it is reasonable to think that many diversion agreements will have as a condition the payment of money.  Osborne raises questions regarding the legality of those diversion agreements that have the payment of money as a condition.

Application of Osborne

Diversion involving payment would appear to be directly at odds with the principles underpinning the majority judgment in Osborne. Diversion agreements are just that: agreements.  The parties have bargained for the withdrawal of a prosecution.  On the Supreme Court’s reasoning, the presence of a payment condition makes that agreement unlawful.

In Hayes v Logan [2005] NZAR 150 (HC) Miller J characterised diversion agreements that involve the payment of money as agreements bargained for in order to bring about the end of a prosecution. While diversion agreements that do not involve money may be seen as “indulgences” from Police (at [30]):

[30] … the scheme also envisages that commitments may be made on both sides. The offender may make reparation or undertake community service on the strength of a police promise to take steps to have the information withdrawn. The scheme emphasises restorative justice which involves the victim in the decision to offer diversion. The element of bargain is even stronger when the offender agrees to pay reparation to the victim, as in this case.

[31] Mr Powell resisted the description of diversion as an agreement. But in The Wealth of Nations Adam Smith said (at page 13) that man possesses an innate “propensity to barter, truck and exchange one thing for another”. I conclude that diversion in this case is aptly described as an agreement, in that the elements of a simple bargain were clearly present. Mr Hayes agreed to pay $2,000 to [the complainant], and on payment and the giving of an official warning police agreed to withdraw all charges against him in relation to the incident.

Such a conclusion is reinforced by the terms of the Policy itself. The Policy records that “All reparation must be paid before the prosecution agree to withdraw a charge. If this is not done … then prosecution against the offender will be continued.” (Policy at 20).  The fact that a payment condition is non-negotiable in this way emphasises the centrality of the payment condition to the withdrawal of the charge.

Diversion agreements take into account a range of other factors. These include victims’ views, the seriousness of the charge, and the need for reparation.  They may also include other non-negotiable conditions such as an apology to a complainant.  Under the Court of Appeal’s approach these factors had the potential to contextualise (and perhaps salvage) a payment of money as part of a wider, principled agreement.  However, the Supreme Court majority will seemingly not look past a payment condition at least where it is a central or dominant feature.  The presence of a payment condition in exchange for withdrawal of a prosecution would make a diversion agreement unlawful.  Even the Court of Appeal might struggle with the expressly conditional nature of a diversion payment.  It is difficult to characterise the requirement for payment as a “conditional reparation undertaking” rather than the price of withdrawal of a charge.

Distinguishing diversion agreements from Osborne?

One possible point of distinction is that a diversion agreement requires a person to admit responsibility (if not guilt) for the conduct with which they are charged. In this way, a diversion agreement could be seen not as a payment of money in exchange for escaping a charge, but rather as a legitimate, non-judicial means of holding someone to account in a meaningful way.  Put another way, if a diversion agreement is an end in itself, rather than a means to end, the proceedings then the inclusion of a payment may not be a hallmark of stifling prosecution.

However, s 148 of the Criminal Procedure Act 2011 requires a court to dismiss a charge when informed that a defendant has successfully completed a programme of diversion. The dismissal is made under s 147 of the Act, which is deemed an acquittal (s 147(6)).  If a completed diversion agreement necessarily results in an acquittal then what the parties bargain for assumes even greater importance.  Payment does not result in a withdrawal of charges.  Payment buys an acquittal.  That is more serious than in Osborne.

Nor is s 148 a Parliamentary lifering thrown to diversion agreements. Section 148 is silent on the permissible content of diversion agreements.  Osborne still guides what may be included lawfully in those agreements.

Furthermore, although diversion is restricted to low level criminal offences, this does not change the fundamental character of what the Supreme Court would say is being bargained for. Obviously, more people may be able to afford $500 reparation rather than $3.41 million.  In that sense, the prospect of payment for diversion is less inequitable than in Osborne.  However, the focus is on whether justice has been purchased, not the price tag.

Finally, Osborne cannot be distinguished on the basis that it is the Police that propose the diversion agreement. Indeed, Osborne implicitly considers that this would be worse as it is the public body actively suggesting that a prosecution would be withdrawn in exchange for a payment (see discussion of this point in Osborne SC at [93]).

Conclusion

Osborne raises real questions over the legality of diversion agreements that involve the payment of money. Given that one of the two key purposes of diversion is reparation, the judgment appears to strike at the heart of the popular scheme as it is currently conceived.  The Supreme Court’s decision would appear to seriously challenge any diversion agreement that includes the payment of money.

Reflection is called for. If diversion fails the test in Osborne but is a principled, beneficial, and well-regarded programme, then the issue may lie not with diversion but with the absolutist quality of the Supreme Court’s majority decision.  Ellen France J’s minority decision (or possibly the Court of Appeal decision) may, in time, be vindicated as the basis by which the lawfulness of these types of agreements should be assessed.

This post has been removed because you can now read an article based on this post at [2018] NZLJ 189.

 

Important note regarding suppression

The defendant in this case still has name suppression, so I have anonymised the case name as Z.  When or if the suppression is removed I will edit this post.

I also cannot link the decision because I am bound by the suppression order, and also everyone else is to, so the only place to find a copy is behind a paywalled legal database.

Overview

Z v R contains guidance from the Court of Appeal on the application of one part of the balancing test in s 30 of the Evidence Act 2006 (Act).  The “seriousness of the offence” should no longer necessarily be assessed by looking to the likely penalty.  Further, if the offence is serious then the s 30(3)(d) factor favours admission.  If the offence is not serious then the factor is neutral.

Facts

Mr Z was charged with possession of objectionable material (indecent images of children).

The evidence had been improperly obtained as the Police acted on a search warrant that had been issued without proper authority.

Therefore admissibility depended on the balancing test in s 30(2) of the Evidence Act 2006.

In the District Court, Judge Harvey ruled the evidence admissible.  Mr Z appealed.

Issues

The Court of Appeal considered the s 30(3)(d) criterion “the seriousness of the offence with which the defendant is charged”.  That factor is one of many in the familiar list of factors to consider when determining whether improperly obtained evidence is admissible. But how to interpret it?

In particular:

• What did Parliament mean by “serious”?
• Does it “cut both ways”? That is, if an offence is not very serious, then does this factor favour exclusion?

The old law

In R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 the Court of Appeal said that an offence could be considered serious for the purposes of s 30 if the sentencing starting point was likely to be around four years’ imprisonment.

The (present-day) Court of Appeal on R v Williams

Appellate courts can either accept the s 30(2) admissibility test as a discretionary decision and in doing so accept inconsistency and unpredictability in the outcomes, or they can “impose a structured methodology” to the balancing exercise (Z v R at [16]).

Williams represented an attempt to impose that structure on the s 30(3) factors.

Then Hamed

Next was Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305. Five judges wrote separately.  On some s 30(3) factors clear rationes emerged.  But there was no consensus on how the “seriousness of the offence” factor was to be interpreted.  Indeed, it’s difficult to see how five people could be more apart…

• Elias CJ: look to the particular offending, have regard to the maximum sentence but not a determinative factor, seriousness itself does not always demand admissibility.
• Blanchard J: look to both maximum sentence, and the likely sentence in that particular case.
• Tipping J: look to maximum sentence as that is what legislature intended and all a court needs to carry out a comparison as it is only one factor in a multi factor test, rejected the Williams four year rule of thumb. Also, all offences punishable by imprisonment seem sort of serious to me.
• McGrath J: agreed with Blanchard J’s test but applied it to come to a different outcome in the same case (!).
• Gault J: the s 30(3) factors are value judgments that depend on the inclination of particular judges.

Back to Z v R

Given that no clear ratio on “seriousness of the offence” emerged from the Supreme Court, the Court of Appeal had to consider the term itself.

The Court surveyed the legislative history (and Canadian authority on which our test is based). That revealed that the considerations for the “seriousness” factor were historically one-way.  It works to get evidence of serious crimes in.  It is a factor that, when triggered, favours admissibility.

But, says the Court, “if allowed too much rein s 30(3)(d) could run away with the balancing exercise, excusing almost any breach of rights where the offence is serious enough. For this reason appellate courts have consistently and firmly insisted that it must not take primacy.” (at [33]).

So, it is just one of the many factors in s 30(3).

Cutting both ways?

The Court observed that other courts have considered that the s 30 test “cuts both ways” for admissibility. The Court clarified that this meant that some factors in s 30(3) that favour exclusion may assume greater importance in serious cases (eg. the nature the impugned right and the nature of the breach).

But s 30(3)(d) – the seriousness factor – only works in one direction. If an offence is serious, s 30(3)(d) will favour admission.  The absence of seriousness does not favour exclusion.

What does seriousness mean? (Or, “no more thumbs”)

Williams says look to penalty (specifically, likely starting point). But penalty (either starting point or statutory maximum) is a poor way of assessing seriousness because (at [43]):

• Sentencing starting point is set by reference to aggravating factors, but under s 30(2) even just one of the aggravating factors may make an offence “serious”.
• The sentencing exercise and the admissibility exercise have different concerns. At sentencing the Court focuses on the particular offence and the particular offender.  Under s 30(2) the Court is concerned with the administration of justice (and may focus more on general public safety concerns).
• Where an offender has multiple charges, the Court may assess seriousness using a charge that would not be the lead offence at sentencing.
• Admissibility decisions often affect a group of co-offenders, and generally the s 30(2) inquiry will be a general one, rather than focusing on each individual (except where co-offenders’ rights have been breached in different ways).

But if you have to use penalty, what should you use: starting point, maximum sentence, or likely end sentence?

Definitely not end sentence – that is dictated by personal factors such as guilty plea that have no relation to the question of admissibility. Further, the end sentence is determined by things like pre-sentence reports that a judge determining admissibility simply will not have (at [47]).

Starting point is better than the statutory maximum

The Court of Appeal considered that the starting point was a better guide to seriousness than the statutory maxim for the following reasons:

• Admissibility is a case-specific balancing exercise, so the statutory reference to the “offence” in s 30(3)(d) means the particular offence. (cf Tipping J in Hamed)
• The maximum sentence is only a rough guide, and maximums change not infrequently. The maximum is going to be reflected in the starting point anyway.
• Using the maximum may give the s 30(3)(d) factor too much weight.
• Using the maximum may be simpler in theory, but trial judges routinely assess the nature and apparent strength of a Crown case when making pre-trial decisions: this sort of provisional assessment is within the wheelhouse of trial judges.

But no need to assess seriousness by having recourse to penalty. It is an evaluative exercise

Ultimate guidance on seriousness

[49] For these reasons, we conclude that the four-year starting point adopted in Williams as a standard or guide to seriousness of the offence in s 30(3)(d) should no longer be used. Rather, seriousness should be treated, like other s 30(3) criteria, as an evaluative consideration. Penalty need not be used to gauge seriousness, although judges may sometimes find it appropriate. When assessing seriousness it is always necessary to bear in mind the points discussed at [33]-[37] above; in summary, the assessment requires a long-term perspective of the administration of justice, in which trials generally should be conducted on their merits but systemic integrity is paramount; that being so, seriousness cannot take primacy over other considerations, seriousness does not justify admission where the breach of rights causes an unfair trial, and a grave breach of an important right may justify exclusion although the evidence would not result in an unfair trial.

(footnote omitted)

Applied to the facts of this case

The likely starting point for Mr Z’s alleged offending may have been around two years’ imprisonment.  The Court of Appeal said that it did not find the level of penalty a very sueful guide (at [52]).

Child pornography intrinsically serious. The images involved vulnerable victims, there were 1,650 images, and there is a market for the images that must be vigorously suppressed.

So it is correct to say that in Mr Z’s case the offending is intrinsically serious albeit the images are not the worst of their kind.

The seriousness of the offence should be accorded “low to moderate” weight in the balancing exercise.

After considering the other matters (nature of the breach etc) the Court agreed with Judge Harvey that the evidence was admissible.

Commentary

The most useful takeaway from the decision is its confirmation that seriousness really “cuts one way” in the balancing exercise. If an offence is serious, then the s 30(3)(d) factor favours admission, if it’s not, then the factor is neutral.

The Court counselled caution about letting the seriousness factor dominate though. It is clearly not a wide licence for admission.  It should not be seen as increasing the overall likelihood of admission in serious cases.  As the Court pointed out, in serious cases the other s 30(3) factors will also be strong.  It will be a case of turning every speaker up to 11: you do not get any change in the overall balance.

Where it will have an effect is cases where the offence is of low seriousness. Defence cannot say “oh this isn’t very serious, so this factor favours exclusion.”  Now, the factor is neutral.

The decision also probably gives greater licence to argue what is or is not serious. Seriousness is no longer tied to the penalty rule of thumb.  Whichever side is assisted by penalty can (and still will) argue that.  But you can have a better crack at arguing your side under the guise of “seriousness is an evaluative exercise”.

This slightly favours the prosecution as one can always make the argument that there are certain public safety elements in any type of offence that mean the offence is serious.

However the effect will be limited, because this decision has “freed up” the assessment of seriousness. And at the same time has confirmed that in cases involving “serious” offending, the other s 30(3) factors that might favour exclusion will be more at play.  So, any time the Crown tries to say “look, this is really serious” in a bid to get s 30(3)(d) into play, the defence can say “yes, they’re right, but that only increases the importance of these other factors that favour exclusion.”

 

The term McKenzie friend stems from McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472 (CA).  As recorded in the judgment of Davies LJ:

Mr Hanger is alive today!  He became Ian Hanger AM QC and a keen amateur photographer.  He delivered an excellent lecture in which he recounted his experience of appearing in front of Lloyd-Jones J as a freshly admitted Australian barrister (he literally rode to work each morning on the Clapham omnibus!).  The lecture is below and keyed to start at the description of the case.  It skips the part where he recounts the captain of his ship to the United Kingdom shooting himself in the head.

 

 

Warning: contains earnestness.

Add your two cents like you’re a dissenting Supreme Court judge

Don’t be silent and never be afraid to give your opinion, even if you disagree with others.  Imagine you’re a Supreme Court justice and four of your colleagues have already written judgments.  The chances you have the “right” answer are slim.  Your co-workers are three of the top legal minds in the country (and O’Regan J).  Chances are that Glazebrook J has got it right.

Yet, in 2017, the Supreme Court attempted to evoke its “greatest hits” era and issued (at least) two five judgment decision in Proprietors of Wakatu v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423, and Scott v Williams [2017] NZSC 185.  In many respects, many of the judges agreed, but each of them was unafraid to express their differences.

You should do the same.  Conformity is overrated.  And extracting a consensus from the competing views is not your job (that’s for those losers in the Court of Appeal: see for example Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 729 at [26]-[38] where the Court picked up the toys thrown from the Supreme Cot).  Never be obstructive, but never be silent.  Act like a Supreme Court justice and give your probably wrong opinion.

This principle applies even if you are not a Supreme Court judge.  The 1983 film The Right Stuff follows the space race during the Cold War.  Both the Americans and the Soviets relied heavily on former Nazi rocket scientists.  In the film the chief American scientist predicted confidently the triumph of the American space program because “our Germans are better than their Germans”.  The quality of all legal decision making operates on a similar principle even if very few clerks are German.

 

Hold true to your values like the Parliamentary Counsel Office

Don’t let anyone make you change the things that are truly important to you.

One of the lesser known aspects of the separation of powers is the battle that rages, unspoken and eternal, between the legislature and the executive over the use of the Oxford comma.  Legislation consistently uses the Oxford comma (see para 3.51 of the Parliamentary Counsel Office’s Drafting Manual).  The executive kicks it to the kerb.

Acts of Parliament create and empower a “Plumbers, Gasfitters, and Drainlayers Board”.  But the executive calls it the “Plumbers, Gasfitters and Drainlayers Board”.  So too the Ministry of Business, Innovation, and Employment and the Registrar of Births, Deaths, and Marriages.

One day this will be my Fitzgerald v Muldoon crossed with Barton v Air New Zealand.  In the meantime, it is a good lesson.  Be like the Parliamentary Counsel.  Always fight the good fight.

 

Never be a lawyer who doesn’t care

Apathy is bliss.  Last year I was sent to make the oral arguments in an application to admit propensity evidence.  To say it was a disaster from start to finish risks understating just how disastrous the middle bits were as well.  At the end, the judge ruled that what I wanted admitted couldn’t even be described as propensity evidence.  That didn’t make the evidence admissible.  It just meant that s 8 of the Evidence Act could then take a crowbar to my arguments.  The application was a no-hoper.  The worst part was that the judge was very polite and apologetic about it.

I think it would have been easier to not care about the result.  But instead, I returned to the office embarrassed and ashamed that the application had even been brought, that I had fronted it, that I hadn’t convinced the judge to agree with me, that the lawyer on the other side (whose talents I respected) saw me stumble, and (above all) that I may have jeopardised the substantive case by failing to have evidence admitted.

Until I reflected on it more, that was the low point of my legal 2017.  And until I reflected on it more, the high point of my legal 2017 had been pointing out in a hearing that as of the previous month, Parliament had actually enacted new legislation governing the area the court was discussing.

The reflection is important.  It has made me realise that my so-called high point is in fact an instance of insufferable know-it-all-ism; my largest vice that moonlights as a virtue.  It has also made me realise that my low point felt so low because I cared about all the things that made me feel the embarrassment: the stakes, my reputation, the application of the law in that particular case.  And expressed that way it’s something I want to hold on to.

Time to stop before the saccharine overpowers us all.  Here’s to more ignominious defeats that I can optimistically dress up as learning experiences.

 

Desire paths

Local authorities install footpaths in parks, and then find that nobody uses them.  Instead, shortcut paths are worn into the grass nearby, indicating where people are actually walking.  They are called desire paths.

The Court of Appeal issues guideline judgments for sentencing decisions.  They are the paths that counsel and the lower courts are expected to walk when determining starting points in sentencing.

The recent sentencing appeal decision of Setu v R [2017] NZHC 1839 exposed a desire path: a seam of cases all of which were at odds with the numerical guidance in a Court of Appeal guideline judgment.  The High Court rejected the appeal and confirmed the primacy of the guideline judgment.

The result is unsurprising (it is a brave High Court judge that would put to one side a Court of Appeal guideline judgment).  But I think it raises interesting questions about the validity (in a lay sense) of the Court of Appeal’s guideline judgments.  If significant numbers of sentencing decisions are low-balling starting points despite a guideline judgment saying they should be higher, then either we need a new guideline that rejigs the numbers in line with actual practice, or we need a grumpy reminder from the Court of Appeal that sentencing judges need to get with the programme.

In Setu we got something approaching the latter (albeit from the High Court), but I’m not sure it’s enough.

Guideline judgments

(Skip this part if you know what guideline judgments are.)

The Court of Appeal has set guideline judgments for certain types of offences (R v Mako for aggravated robbery, R v Terewi for cannabis offending, R v Fatu for drug offending, R v AM for sexual offending).

The purpose of these decisions is to shortcut sentencing decisions.  They offer guides for quantifying sentences based on either examples of types of offending, or the presence of certain features of the offending.

For example, the guideline judgment for grievous bodily harm offending is R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA).  The Court listed a range of factors at paragraph [31]: things like the use of extreme violence, premeditation, serious injury, the use of weapons, attacking the head, and more.

Then, the Court set out bands containing a range of starting points:

1. Band one: 3-6 years’ imprisonment.
2. Band two: 5-10 years’ imprisonment.
3. Band three: 9-14 years’ imprisonment.

The Court then said that where a certain number of the paragraph [31] factors are present, an offence will fall into a certain band.

Finally, the Court emphasised that the bands should be “used flexibly”, and that “the features of the offending in each case must be carefully assessed in order to establish a starting point which properly reflects the culpability inherent in the offending” (at [42]).

If these guideline judgments didn’t exist, then you would have to find comparator cases in each sentencing decision and, on each occasion, have to analogise a wide range of cases to the particular facts of the instant case.  Guideline judgments are intended to bring broad consistency to sentencing decisions.

Setu v R [2017] NZHC 1839

Mr Setu had been sentenced to a total of five years’ imprisonment for a small number of charges, with a lead offence of wounding with intent to cause grievous bodily harm (Crimes Act 1961, s 188(1).  Maximum sentence 14 years’ imprisonment).  The sentencing judge used the guidance in R v Taueki to place Mr Setu’s offending in the lower end of band three, and took a starting point of 10 years’ imprisonment.

On appeal to the High Court, Mr Setu contended that the starting point was too high because:

• the aggravating features had been double-counted; and
• the starting point was higher than comparable (and more serious) cases.

Justice Mander dismissed the double counting ground and I do not intend to address it.

On the comparable starting point ground, Mr Setu’s counsel pointed to eight comparable decisions all of which, it was submitted, supported a starting point for Mr Setu of no more than eight years’ imprisonment.

Mr Setu’s starting point was therefore:

• in step with the guidance in R v Taueki; but
• out of step with the cases that had applied R v Taueki.

What to do?  The answer was a doubling down on R v Taueki.  The key paragraphs of Mander J’s decision on this point are below:

[46] Judge Neave was aware in taking a starting point of 10 years that there were sentencing decisions, indeed a majority of cases, where a lesser starting point has been applied. He noted the tension between those cases and the direct application of the Court of Appeal’s Taueki guidance, based upon the presence of identified aggravating features to which Mr Setu’s offending gives rise. A sentencing Judge is entitled to return to first principles and, in particular, to apply the guidance provided by the Court of Appeal when setting a starting point. This is particularly so when over the years since the 2005 Taueki decision, a body of decisions have accumulated which illustrate some variation in sentencing levels and perhaps to some extent “sentence drift” from the original guidance provided by the Court of Appeal.

[47] That development of itself may simply reflect what the Court of Appeal acknowledged in its Taueki decision, namely that sentencing ultimately involves the exercise of discretion and must allow for flexibility. The fact that some sentencing Courts have chosen, as they are entitled, to apply Taueki in a particular way does not, in my view, render another sentencing Court’s application of the Taueki guidance in another case inappropriate, so long as the starting point arrived at can be reconciled with the range the Court of Appeal has held to be available because of the nature and combination of aggravating features.

[48] To suggest otherwise would effectively relegate Taueki to a secondary source of guidance in favour of a requirement that a sentencing Court undertake a comprehensive review of cases, the circumstances of which will almost inevitably vary, before it may confidently impose a sentence for GBH offending. While assistance from other sentencing decisions provides a useful check, such an approach would largely defeat the purpose and utility of the guideline authority.

This is interesting for a number of reasons.

It has implications for sentencing appeals from offending where there is a guideline judgment.  It emphasises the primacy of the guideline judgment as the ultimate arbiter of sentence length on appeal, as well as at initial sentence.  The test for an excessive sentence should be by reference to the guideline, not by reference to comparable cases.   That last sentence is a little over-simplistic as one will still need to check that the aggravating features have been applied correctly (and not, for example, double-counted).

His Honour Mander J did not engage in any substantive way with the eight decisions counsel cited in order to try to distinguish them.  Rather, their inconsistency with Mr Setu’s starting point was plainly acknowledged.

I am not sure where that leaves the eight cases that counsel cited.  His Honour described them as “applying Taueki in a particular way” and that the judges in those cases were “entitled” to do so.  But under Mander J’s approach they are not the first port of call in determining whether a starting point is excessive (Taueki is).  They are not really the last port of call either, since Taueki will tell you all you need to know.  It’s a neat trick of overruling them without saying they’re wrong: “those decisions are fine, except you don’t need to look at them”.

Back to desire paths

One response to the issues that Setu raises would be to say that the sentencing levels as articulated by the Court of Appeal in Taueki are, on the whole, slightly too high for sentencing judges to stomach.  That is why there are so many cases similar to Mr Setu’s but with lower starting points.

In turn, that supports an argument that the local authority should heed the desire path, and the Court of Appeal should reconsider its guideline judgment in respect of the starting points it sets.  This would probably best be accomplished by changing the number of aggravating factors that need to be present to get to a particular band.  At the moment it is relatively low: you get to band two by having “two or three” aggravating features (Taueki at [38]).  This would have the effect of lowering the sentencing levels, without fiddling directly with the years of imprisonment (that’s important because you can’t just lower everything without shying away from the statutory maximum imposed by Parliament).

The alternative is a response along Mander J’s lines:  “no.  This is the guideline judgment.  It is not the appellate courts’ problems if the sentencing courts are lowballing the sentences sometimes.”  Or put another way “the desire path is not sanctioned.  Even if some people are walking it frequently it doesn’t mean it’s the right way.”

Constitutionally, that is no doubt correct.  It also exposes two problems.

First, four of the eight cases that counsel in Setu cited were Court of Appeal decisions confirming or altering the starting point imposed.  That means that even the Court of Appeal isn’t consistently applying its own guideline judgment.  I think that last sentence is mostly correct.  The Court would be reluctant to increase a sentence on appeal so I admit it’s perhaps not particularly fair, but it is correct to say that the Court of Appeal has been signing off decisions that do not necessarily conform to its guideline judgment.

Second and relatedly, it has exposed inconsistent sentencing practice which risks unfairness for prisoners.  Parity is jeopardised when a seam of generous sentencing is allowed to pass unchallenged, but comparatively sterner decisions are upheld.  An offender in Mr Setu’s position can perhaps feel hard done by that he does not receive a similar starting point in a range of cases that have all purported to apply the guideline judgment.

Sentencing is never going to be a precisely mathematical exercise.  All sentences will fall within a range.  What matters is that there is one path.  A wide path, perhaps, but one path all the same.  I think Setu v R shows there is some work to do.