Hessell v R

• Jurisdiction: New Zealand
• Judge: McGrath J
• Judgment Date: 16 November 2010
• Neutral Citation: [2010] NZSC 135
• Docket Number: SC 102/2009
• Court: Supreme Court
• Date: 16 November 2010

Raymond Everest Hessell

and

The Queen

[2010] NZSC 135

Court:

Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ

SC 102/2009

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against a Court of Appeal decision which dismissed the appellant's sentence appeal — appellant convicted of sexual offending and sentencedto two years and eight months imprisonment — appellant pleaded guilty a week before trial and received a discount of 10% — whether appellant was given a sufficient discount for his guilty plea — consideration of the sliding scale guidelines of discounts for guilty pleas introduced by the Court of Appeal — whether the guidelines were a departure from the principles of the Sentencing Act 2002.

Counsel:

R M Lithgow QC, G J King and C J Milnes for Appellant

C L Mander and J Murdoch for Crown

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS

(Given by McGrath J)

Table of Contents

	Para No
Introduction	[1]
Charges, pleas and sentence	[2]
Court of Appeal judgment	[10]
Consistency and discretion in sentencing	[23]
Sentencing on guilty pleas: historical approach	[28]
The statutory requirements	[34]
Guideline judgments and the Sentencing Act	[39]
Allowing for guilty pleas in sentencing	[45]
Application of Court of Appeal's judgment	[68]
Conclusion	[70]
Disposition of appeal	[78]

Introduction

1 This appeal concerns a judgment of the Court of Appeal which set guidelines on the approach to be taken by sentencing courts when a person charged with an offence pleads guilty. 1 A guilty plea has long been treated as a mitigating factor in sentencing and the Court of Appeal judgment confirms that isto continue. The judgment reiterates the well established principle that the earlier the plea is entered, the larger the reduction should generally be, and that principle is not in issue. The judgment, however, also sets out a prescriptively structured approach for sentencing courts to fix reductions in the sentences that would have been imposed if the offender had been convicted after a trial. The appeal to this Court puts in issue the prescriptive form of the guidance and the legitimacy of the courts establishing such a regime of sentence reductions for guilty pleas. The essence of the structure was that sentence reductions were determined according to a sliding scale with a 33 per cent reduction for a plea entered at the firstreasonable opportunity at one end, and a 10 per cent reduction for a plea entered three weeks before commencement of the trial, at the other. 2

Charges, pleas and sentence

2 The appellant and his co-offender were charged with sexual offending against two girls aged 14 and 15. The co-offender was the mother of the 14 year old complainant. The offending took place on 22 September 2007 and both offenders were arrested and charged on 3 October 2007. Following a deposition hearing they were committed for trial in the High Court on 9 April 2008.

3 The first call-over took place on 28 May 2008, when an amended indictment was filed. The co-offender pleaded guilty to the five counts she faced, on which she was jointly charged with the appellant. She was sentenced on 9 October 2008 to 12 months' home detention and was subject to release conditions for six months.

4 At the call-over the appellant indicated his intention to defend the charges he faced and the trial was set down to commence on 8 December 2008. On 3 December, at a pre-trial teleconference, he indicated he might plead guilty. On 5 December he was arraigned and pleaded guilty to nine counts of sexual conduct with a young person under 16, contrary to s 134(1) of the Crimes Act 1961. On four of those counts he was charged alone and on the other five he was charged jointly with the co-offender. He was sentenced on 6 March 2009 by Heath J to two years and eight months' imprisonment on each charge, to be served concurrently. 3

5 The Judge set a starting point based on the gravity of the offending at a term of two years and six months' imprisonment (which was the same as that used by the Judge who sentenced the co-offender). He then identified as aggravating features the vulnerability of the victims (their age and intoxicated state), the emotional harm caused to them and the appellant's breach of a position of trust. As well, the Judge took into account that the appellant, aged 50 years, was significantly older than the co-offender, which was relevant to the appellant's failure to stop what was going on. The Judge added six months to the sentence starting point for these factors, increasing it to three years' imprisonment. He added a further month because of the appellant's prior criminal record involving drug offences and because he had smoked methamphetamine on the day of the offending, which impacted on his behaviour.

6 In relation to giving credit for his guilty pleas, the Judge said:

[41] I reject any suggestion that you could not have pleaded guilty earlier. It was always open to you, if you contested particular facts or relative culpability, to enter guilty pleas and seek a disputed facts hearing before sentence. Indeed, a very sensible time for that to have happened was when [co-offender] pleaded guilty, so that the true culpability between the two of you could have been accurately assessed by one sentencing Judge. Instead, you elected to plead guilty on the Friday before the trial was due to start, at a

time when the victims were preparing themselves emotionally to relive their experiences before a jury.

[42] You cannot expect any significant credit for your guilty pleas in these circumstances. I allow a credit in the region of 10%.

7 After considering home detention, and deciding it was inappropriate, the Judge decided that the end sentence should be two years eight months' imprisonment.

8 The appellant appealed to the Court of Appeal, one ground of appeal being that the sentencing Judge failed to give asufficient allowance for the guilty pleas he had entered. A related ground was the disparity between his sentence and that of the co-offender.

9 The Court of Appeal saw this appeal as providing an appropriate case for it to deliver a Full Court guideline judgment on the manner in which sentencing judges should give credit for guilty pleas.

Court of Appeal judgment

10 In the introduction to its judgment, the Court of Appeal explained why it saw it as necessary to give fresh guidance on sentencing discounts for guilty pleas. The Court said: 4

This Court's traditional approach to how guilty pleas should be treated was symptomatic of the courts' general approach to sentencing, with judges vested with broad discretions. Particularly since the passage of the New Zealand Bill of Rights Act 1990, however, such unfettered discretions have increasingly been viewed as unfair. In the case of guilty pleas, it was being asked, on appeals and elsewhere, whether it is fair if offender A is sentenced by a judge who believes in tiny discounts for guilty pleas while offender B, guilty of like offending, is lucky enough to be sentenced by a judge with a generousview. The passage of the Sentencing Act 2002, with its insistence on a highly structured approach to sentencing, signalled the need to review unfettered discretions and effectively rendered the traditional approach to guilty pleas untenable. In particular, s 8(e) of that Act established as a fundamental principle of sentencing that like cases must be treated alike, so far as possible, and s 9(2)(b) identified a guilty plea as a discrete mitigating factor.

11 The Court of Appeal acknowledged that in sentencing judgments since 2005 it had “edged” towards more definitive sentencing guidelines on recognition of guilty pleas. A major influence on its thinking was the initial guideline on sentence reduction for a guilty plea issued by the United Kingdom's Sentencing Guidelines Council in December 2004. 5 According to its foreword, the intention of that guideline was “to promote consistency in sentencing by providing clarity for courts, court users and victims so that everyone knows exactly what to expect?. Previously there had been different understandings of the purpose of the reduction and the extent of any reduction that should be given.

12 The United Kingdom Council had published a revised “definitive” guideline by the time of the Court of Appeal's judgment. 6 The Court noted that this mandated a sliding scale of discounts starting at one-third, where the plea is entered at the first reasonable opportunity, to one-quarter where a trial date has been set and one-tenth, maximum, if the plea were entered at the “door of the court?or after commencement of the trial.

13 The New Zealand Parliament had enacted the Sentencing Council Act 2007 on the general lines of the English model. 7 Following the change in Government in 2008, however, the Sentencing Council provided for by that Act had not been established. In those circumstances, the Court of Appeal decided that it should resume giving guideline judgments on sentencing, giving priority to guidance on the discounts for guilty pleas. Such a guideline would assist in achieving greater sentencing consistency and set out a clearer approach for the future. It would enable defence lawyers to advise on the consequences of, in particular, an early guilty plea with some certainty. The Court's guideline would not override sentencing discretion but would give lower courts guidance as to how it was exercised.

14 The Court of Appeal decided that in future a guilty plea should be recognised by giving a discrete reduction, calculated as a percentage of the sentence that otherwise would have been imposed. The discount was to be applied after all

aggravating factors and all other mitigating factors had been taken into account. The percentage would be determined according to a sliding scale...