Hessell v R [2010] NZSC 135, 16 November 2010
- Court
- Supreme Court
- Judgment
- 16 November 2010
- Neutral
- [2010] NZSC 135
Areas of law
Judgment analysis
AI-generated summary
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Facts
The appellant and his co-offender were charged with sexual offending in October 2007. Following committal for trial in April 2008, the co-offender pleaded guilty at the first call-over in May 2008. The appellant indicated his intention to defend the charges, and a trial was set for December 2008. Three days before the trial was due to commence, he pleaded guilty to nine counts of sexual conduct with a young person. The sentencing Judge, Heath J, imposed a sentence of two years and eight months' imprisonment, allowing a discount of approximately 10% for the late guilty plea. The appellant appealed to the Court of Appeal on the grounds that the discount was insufficient. The Court of Appeal took the opportunity to issue a Full Court guideline judgment establishing a prescriptive, sliding-scale approach to guilty plea discounts, but dismissed the appellant's individual appeal. This appeal to the Supreme Court challenges the Court of Appeal's guideline judgment.
Held
- The heavily structured, sliding-scale approach to guilty plea discounts established by the Court of Appeal is an inappropriate departure from the statutory requirement to evaluate the full circumstances of each individual case.
- The credit given for a guilty plea must be the result of an evaluation of all circumstances in which the plea is entered, including its timing, the strength of the prosecution case, and what it indicates about the offender's acceptance of responsibility.
- Under the Sentencing Act 2002, remorse (s 9(2)(f)) is a separate mitigating factor from a guilty plea (s 9(2)(b)) and must be assessed independently.
- The upper limit for a sentence reduction for a guilty plea should not exceed 25 per cent, as remorse is to be dealt with as a separate consideration.
- A prescriptive guideline for guilty plea discounts carries an unacceptable risk of pressuring individuals who may not be guilty to plead guilty.
- The ultimate sentencing task is an evaluative one, where the judge must stand back and be satisfied that the final sentence is the right one for the offending in light of all relevant circumstances, including the acknowledgement of guilt.
The appeal is dismissed.
Key passages10
Consistency has always been an objective of sentencing policy, and s 8(e) of the Sentencing Act 2002 now gives that statutory backing.
“The principal objective of the guidelines set out in this judgment is consistency. Consistency has always been an objective of sentencing policy, and s 8(e) of the Sentencing Act 2002 now gives that statutory backing.”
A sentencing Judge needs not only to identify relevant factors, but also to evaluate their seriousness to avoid a formulaic or mathematical approach.
“We do, however, emphasise that a sentencing Judge needs not only to identify such factors, but also to evaluate the seriousness of a particular factor ... The evaluative task is an important aspect of sentencing: without it, there would be a danger of a formulaic or mathematical approach to the assessment of sentencing starting points.”
In sentencing, courts often take a plea of guilty into account as a mitigating factor and give a 'discount' for such pleas.
“Courts often take a plea of guilty into account as a mitigating factor and give a ‘discount’ for such pleas.”
The three reasons for giving credit for a guilty plea are: it spares the victim the ordeal of giving evidence; it saves the State time and expense; and it may be evidence of the offender’s acceptance of responsibility and contrition.
“The three reasons for this sentencing principle have been repeated by this Court on numerous occasions: it spares the victim the ordeal of giving evidence; it saves the State the time and expense of a defended hearing; and it may be evidence of the offender’s acceptance of responsibility for wrongdoing and contrition.”
The weight given to a guilty plea as a mitigating factor was, in every case, a matter for the sentencing judge, varying according to the circumstances in which the plea was entered.
“This Court has repeatedly stated that pleading guilty should attract a meaningful discount from an otherwise appropriate sentence. The Court has resisted laying down any specific quantum or proportion for such discount because of the widely varying circumstances in which it might be entered.”
The Sentencing Act 2002's text indicates that the weight given to the listed purposes (s 7), aggravating factors, and mitigating factors (s 9) in any particular sentencing is for the court to determine.
“In these respects the text of ss 7 and 9 clearly indicates that the weight given to the listed purposes of aggravating and mitigating factors in the context of any particular sentencing occasion is for the court to determine.”
The application of punishment for offending remains an evaluative task for sentencing judges, reflecting an amalgam of sentencing discretion and consistency.
“In this context the proper application of punishment for offending remains, as it was prior to the 2002 legislation, an evaluative task for sentencing judges and those judges who determine sentencing appeals. The task reflects the amalgam of sentencing discretion, on the one hand, which ensures the gravity of individual offending and circumstances of the offender are duly assessed, and sentencing consistency, on the other, which tempers sentencing judgment toensure that sentencing outcomes reflect a policy of like treatment for similar circumstances.”
To single out some sentencing considerations and attribute specific numerical or proportionate value to them distorts the difficult balancing exercise which the judge must perform.
“So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.”
The Sentencing Act 2002 treats remorse shown by the offender as a mitigating factor separate from the guilty plea.
“This approach does not fit in well with the terms of the 2002 Act, which treats “any remorse shown by the offender” as a mitigating factor that is separate from the guilty plea.”
It is inappropriate for a court to make changes in sentencing policy that would restrict the capacity of judges to determine sentences that are considered to fit all the circumstances of the case.
“It is also inappropriate for a court to make changes in sentencing policy that would restrict the capacity of judges to determine sentences that are considered to fit all the circumstances of the case. Where the development of sentencing policy is motivated by a utilitarian calculus it may not be appropriate for judicial decision. Judges should show restraint in moving beyond the area mandated by existing legislation when exercising their sentencing powers.”
Cases mentioned in judgment
Legislation mentioned
- Crimes Act 1961, s 134(1)
- New Zealand Bill of Rights Act 1990, s 25(a), s 25(c), s 25(d)
- Sentencing Act 2002, s 3, s 7, s 8, s 8(e), s 9, s 9(2)(b), s 9(2)(f), s 9(4)(a), s 10A
- Sentencing Council Act 2007
- Crimes Act 1914 (Cth), s 16A(2)(g)