Moses v R

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 15 July 2020
• Neutral Citation: [2020] NZCA 296
• Court: Court of Appeal
• Docket Number: CA167/2019
• Date: 15 July 2020

Between

Valentine Atiriana Moses

Appellant

and

The Queen

Respondent

[2020] NZCA 296

Court:

Kós P, Miller and Collins JJ

CA167/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal — appeal against sentence for methamphetamine offending — the judgment revisits R v Hessell [2010] 2 NZLR 298 which adopted a three-step methodology for sentencings where a guilty plea had been entered — whether sentencing methodology required a two-step approach — Sentencing Act 2002

Counsel:

V L Thorpe and A W Clarke for Appellant

M J Lillico and ZWQ Andrew for Respondent

E A Hall and L Scott for Criminal Bar Association of New Zealand as Intervener

• A The application to adduce a s 27 report on appeal is granted.

• B The appeal is allowed.

• C We quash the sentence passed below and substitute a sentence of seven years, five months imprisonment.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Miller J)

TABLE OF CONTENTS

The three-step methodology	[4]
The Sentencing Act framework for sentence calculation	[4]
The starting point: R v Taueki	[5]
Uplifts and discounts must maintain proportionality	[8]
What the Act says about a guilty plea discount	[11]
The rationale and three-step methodology: Hessell v R	[12]
Calculating the guilty plea discount	[27]
Other mitigating factors reduce the guilty plea deduction	[30]
The three-step methodology in practice	[39]
Should the Court depart from Hessell?	[44]
A modified methodology for calculating guilty plea discounts	[45]
Ms Moses's sentence appeal	[50]
The facts	[50]
The sentencing	[54]
The appeal	[59]
The starting point	[60]
Personal mitigating factors: the s 27 report	[63]
Sentence calculation	[71]
Result	[72]

1 In this judgment we revisit the Court's 2009 judgment in Hessell v R, which adopted a three-step methodology for sentencings affected by a guilty plea. 1 We alter that methodology to require a two-step approach in which any discount for a guilty plea is fixed at the second step.

2 Ms Moses is one of several dealers in methamphetamine who were sentenced under the former guideline judgment, R v Fatu, 2 and whose appeals were adjourned pending delivery of the Court's current guideline judgment in Zhang v R. 3 We also consider, by reference to the Zhang guidelines, whether her sentence was manifestly excessive. 4

3 We address the methodological issue before turning to the circumstances of Ms Moses's appeal.

The three-step methodology

The Sentencing Act framework for sentence calculation

4 The Sentencing Act 2002 establishes the framework within which this Court has developed sentencing methodology. The Act records purposes for which offenders may be sentenced and lists principles and aggravating and mitigating factors that courts must consider in sentencing. 5 It does not rank sentencing purposes or principles or prescribe that any given aggravating or mitigating factor must be given more or less weight than another. 6 Its list of aggravating and mitigating factors is not exhaustive. 7 Nor does it adopt any particular methodology. But it does invite a structured approach in which the sentencer evaluates the seriousness of the harm done, the culpability of the offender's conduct, the interests of the victim, and the personal circumstances of the offender. Guideline judgments build on the Act, seeking to further its purposes by promoting transparency of analysis, which facilitates comparison and appellate review, and principled consistency of outcome.

The starting point: R v Taueki

5 An account of sentencing methodology under the Act begins with R v Taueki, a 2005 decision in which this Court reviewed longstanding guidelines for grievous bodily harm offences and set increased starting points for serious offences. 8 The former guidelines had established an array of sentences without making it clear whether they incorporated aggravating and mitigating circumstances referable to the offender. 9

6 In Taueki the Court accordingly established a two-step methodology founded on the idea of a starting point. At the first step the sentencing judge establishes a

provisional sentence or starting point based on the circumstances of the offending. 10 The Court defined the starting point as the sentence considered appropriate for the particular offending by an adult offender after a defended trial. 11 We use the term “adjusted starting point” to signify that it incorporates all aggravating and mitigating features of the offending. 12 At the second step the judge tailors the adjusted starting point to the offender, incorporating their personal aggravating and mitigating circumstances to reach the appropriate end sentence. 13 By separating the circumstances of the offence from those of the offender the methodology permits comparison among starting points for similar offending. 14

7 The Court has since used adjusted starting points to demarcate sentencing bands in other guideline judgments. Apart from Taueki, it has done so in R v AM (sexual violation) and Zhang v R (methamphetamine). 15 It has also delivered judgments providing guidance about some, but by no means all, of the mitigating factors recognised in the Act. 16

Uplifts and discounts must maintain proportionality

8 The Act does not treat proportionality as a dominant sentencing principle, but its purposes, principles, and aggravating and mitigating factors emphasise harm and culpability and by requiring that the sentencer consider these matters the Act does anticipate that the sentence should be commensurate. 17 By way of illustration, s 8(a) requires that the sentencer take into account gravity of the offending, while ss 8(b)-(d)

require that the offending be gauged against maximum penalties, 18 and s 8(g) requires that the sentence be the least restrictive that is appropriate in the circumstances. Some sentencing purposes, principles and factors do not rest on proportionality — the leading examples are public protection and rehabilitation — but it is always an important sentencing principle. It is underscored by s 9 of the New Zealand Bill of Rights Act 1990, which protects the right not to be subjected to disproportionately severe punishment

9 The authorities recognise that uplifts and discounts for personal circumstances should also be proportional. This principle is seen most clearly in cases about uplifts for previous convictions, but it also applies to discounts. 19 So, for example, in Taylor v R this Court held that an uplift “must bear some reasonable relationship or proportionality to the starting point”. 20 This ensures that end sentences retain an appropriate degree of proportionality, in the offender's circumstances, to the harm done and the culpability of the offending.

10 To say that uplifts or discounts at the second step must bear an appropriate proportion to the adjusted starting point is not to insist that they be calculated as a percentage. 21 Judges commonly fix some discounts as a number of months or years. But it is usual to fix larger discounts, including those for youth, mental illness and guilty pleas, as a percentage, which aids calculation and facilitates comparison among cases. 22

What the Act says about a guilty plea discount

11 Section 9(2) of the Act provides that a sentencing court must consider mitigating factors listed there, to the extent they apply to the case. One of these is

“whether and when the offender pleaded guilty”. 23 The statutory language says nothing about the rationale for a guilty plea discount, or its amount

The rationale and three-step methodology: Hessell v R

12 Until 2009, when this Court's judgment in Hessell was delivered, the leading authority on guilty plea discounts was R v Mako, a 2000 decision in which the Court resisted laying down any specific amount or proportion because of the widely varying circumstances in which a plea might be entered. 24 Following the Sentencing Act 2002 a practice had nonetheless developed of applying a sliding scale based on the plea's timeliness. In Hessell the Court abandoned the Mako approach and established a set of guidelines designed to deliver a consistent approach to guilty plea discounts. 25

13 The decision resulted in a three-step methodology for sentences affected by a guilty plea. As explained above, at the first step the court fixes an adjusted starting point based on the circumstances of the offence, and at the second step it incorporates any aggravating and mitigating circumstances of the offender. Hessell added the third step, which provides for the guilty plea. 26 The Court established a sliding scale which permitted a discount of 33 per cent for a plea entered at first reasonable opportunity, reducing to 10 per cent for a plea entered three weeks before trial. 27 It recorded that its approach was based on its then-current practice. 28

14 The Court adopted the three-step methodology because it identified a strong public interest in guilty plea discounts being predictable. It cited guidelines prepared by the English Sentencing Guidelines Council and a draft guideline prepared by the New Zealand Law Commission in the expectation that a sentencing council would be established in New Zealand. These guidelines justified a guilty plea discount because it avoids a trial, with associated benefits for victims and witnesses and efficiency gains

for the State; for that reason, it was distinguished from personal mitigation. 29 The English guideline accordingly recommended that “the sentencer should address separately the issue of remorse, together with any other mitigating features, before calculating the reduction for the guilty plea”. 30 The discount should be a proportion of the total sentence imposed, calculated according to “the circumstances in which the guilty plea...