Hessell v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeMcGrath J
Judgment Date16 November 2010
Neutral Citation[2010] NZSC 135
Date16 November 2010
Docket NumberSC 102/2009

[2010] NZSC 135

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ

SC 102/2009

Raymond Everest Hessell
and
The Queen
Counsel:

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

C L Mander and J Murdoch for Crown

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.

The issues were: whether H should have received a larger discount for his guilty plea; and whether the sliding scale introduced by the CA was a departure from the principles of the Sentencing Act 2002 “SA”.

Held: Section 9(b) SA (aggravating and mitigating factors — whether and when the offender pleaded guilty) required the sentencing court to take into account a guilty plea but did not indicate any policy as to the approach to be taken. Section 8(e) SA (principles of sentencing orotherwise dealing with offenders) required consistency but its terms did not favour a structured approach to sentence reductions by reference to a slidingscale according to when the plea was entered, as a primary consideration. It was the desirability of consistency in respect of similar offenders committing similar offences in similar circumstances that must be taken into account. All circumstances in which the plea was entered must be addressed, notjust the timing.

The CA's approach was problematic because it put aside factors of apparent relevance to the mitigating weight to be given to a guilty plea. The slidingscale approach would also put pressure on an accused to plead guilty for unprincipled reasons; in some cases pressure of that kind could lead to a guilty plea being entered in haste by someone who may not be guilty. It also did not allow for a reduction where a plea was entered only after resolution of disputed facts. The requirement that a defendant must always plead guilty before entering the disputed facts process to get the maximum discount was too rigid. The better course was to permit sentencing judges to assess the value of the plea in the particular circumstances without a rigid requirement for application of a scale of discounts dependent on the exact timing of the plea.

The CA's approach that remorse should not be considered independently of the guilty plea did not accord with s9(2) SA where remorse shown by the offender was treated as a separate mitigating factor from a guilty plea. Where remorse had been shown, a separate sentencing credit should be given from that for the plea.

The policy reasons for giving credit for guilty pleas in sentencing did not suit an approach which did not treat the circumstances in which the plea was entered as relevant and what they indicated about acceptance of responsibility for the offending. The heavily structured nature of the sliding scale involved an inappropriate departure by the CA from the statutory requirement of an evaluation of the full circumstances of each case. The credit given shouldreflect all the circumstances in which the guilty plea was entered, including whether it was truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances would identify the extent of the true mitigatory effect of the plea.

The reduction for a guilty plea should not exceed 25%. The upper limit reflected the fact that remorse was dealt with separately. Whether the accused pleaded guilty at the first reasonable opportunity was relevant but that did not suit a formalistic quantification. A plea could reasonably be seen as early when an accused pleaded as soon as he or she has had the opportunity to be informed of all implications of the plea.

H had received a credit from the sentencing Judge of 10% for a very late guilty plea when there was no reason for justifying any greater reduction. It had been within the Judge's discretion.

Appeal against sentence dismissed.

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...

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