Replace the Judges?
New Zealand's Sentencing Methodology
There has been a suggestion that the sentencing of offenders should be removed from the Judges.[1] There is a perception that Judges are too soft, are using sentencing for “social justice” purposes, are failing to punish offenders – ignoring the fact that the word “punish” does not appear anywhere in the Sentencing Act 2002.
And that is where a consideration of sentencing must begin – with the Sentencing Act which was seen through the legislative process by the then Minister of Justice Phil Goff and which was touted as the vehicle for tougher sentencing in New Zealand – or that was the populist cant that accompanied the introduction of the Act. That cant ignored the provisions of section 8(g) of the Act which provides that when sentencing an offender the Court must impose the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences set out in the Act.
Sentencing methology has developed over the years but is solidly grounded in the provisions of section 7 of the Act – which sets out the purposes of sentencing – and section 8 which sets out 10 principles of sentencing. Each of those principles is incorporated into a process which a Judge must undertake when sentencing an offender. The process, solidly grounded in the Statute, has been developed and refined by the Appellate Courts
Whilst it would be incorrect to suggest that sentencing in New Zealand is a combination of formulaic and mathematical procedures, there is a distinct pattern in the way in which a Judge should approach sentencing. This has developed from what has been described as the “modern” approach to sentencing articulated in the case of R v Taueki.[2]
This requires the Court to fix a starting point for the offending by assessing the seriousness of the offence and the culpability of the offender. The Court is then required to factor in any uplifts for the particular aggravating features of the offending or discounts for mitigating features of the offending. The outcome is known as the “adjusted starting point”.[3]
Once the adjusted starting point has been fixed, the Court may then apply the “guilty plea discount” along with adjustments for personal mitigating or aggravating circumstances.
The availability of discounts for guilty pleas and the timing thereof were the focus of Hessell v R[4] although it should be emphasized that the methodology in that case has been replaced by that of Moses.[5]
It is important to understand that the discounts are calculated as a percentage of the adjusted starting point. Thus, if there is to be a discount for remorse of 10%, a discount for a guilty plea of 25% and a discount for the youth of the offender of 10%, the total 45% is 45% of the adjusted starting point.
In the past there had been some disparity in the way in which discounts were applied. Were they based on the adjusted starting point, or were they by way of a rolling calculation where the discounts were calculated on adjusted and reducing figures? It was this difficulty that Moses sought to resolve and made it clear that all discounts or uplifts were based upon the adjusted starting point figure.
The fixing of the adjusted starting point is what could be termed “offence based” and looks at the overall criminality of the situation. It requires an evaluation of the offence and any factors associated with it – either aggravating or mitigating – in arriving at the adjusted starting point. One of the many factors to be considered is the level of the defendant’s culpability. This is a part of the overall evaluation for the process of assessing the adjusted starting point. That figure forms the basis for that which follows which is both an evaluative process to assess whether any discounts are available and the percentage amount, and a mathematical one in calculating the application of the percentage.
The evaluation process is a vital step because the range of conduct encompassed by the crime charged may vary widely. Thus, in addition to the essential elements of the offence, each individual case will have its own features which may impact upon the seriousness of the conduct and the level of culpability involved. Thus, the first stage of the process looks at the combination of features in order to put the offence in the proper place on a scale of seriousness.
In many cases seriousness may be classified as “low”, “moderate” or “high”. In my view this is a somewhat simplistic approach that lacks nuance. Although the classifications provide a useful starting point for analysis, each classification should be further subdivided. For example, the “low” category may be subdivided into “low-low”, “moderate-low” or “high-low”. Appellate courts have recognized the issue of nuanced-based evaluation in expressing ranges of sentence which may be imposed for certain offences, especially in guideline decisions.
Often a judge may be confronted with an offender who faces a number of charges. Where this situation is present, the usual approach is to identify a “lead” or “index” offence, analyse a starting point for that charge and then apply an uplift for the additional offending, taking into account what is referred to as the “totality” principle.[6]
On occasion there may be multiple offences as a part of a pattern of offending or more or less equivalent seriousness. In such cases it is legitimate to select a starting point that represents the offending as a whole.[7]
Although the second step in the Moses sentencing process considers that the adjustments must be made on the basis of a total percentage, the reality is that each category of discount or uplift must be considered and fixed before the final calculation is done.
Depending upon the discounts that may be available and the evaluation of the allowable percentage to be applied, the final figure may bear very little resemblance to the adjusted starting point. Indeed, the only relationship between the two may be that the adjusted starting point provides the basis for the calculation of the available discounts. In that respect, care must be taken to ensure that the discounts do not result in a sentence that is insufficient to mark the gravity of what occurred.[8]
This is not to say that the final outcome will always result in a substantially reduced figure from that of the adjusted starting point. The second stage of the process involves an assessment of the personal circumstances that may aggravate or mitigate the offending. It may be that the presence of a number of personal aggravating circumstances and the absence of any mitigating ones may increase the sentences over and above the adjusted starting point.
As a result of this approach to sentencing there has developed a significant body of authority that considers the variety of discounts that may be available. This should not be surprising for it recognizes the infinite variety of the human condition.
Discounts fall within the ambit of mitigating factors, and the extent of the discount is a highly discretionary exercise.[9] The difficulty is that in some cases appellate Courts have applied generous discounts which are then advanced by counsel as of binding or at least persuasive authority without recognizing that each case must be judged on its own merits.
A further factor is that, despite the direction in Moses that discounts are to be cumulated and applied to the adjusted starting point, each discrete discount must be identified as a mitigating factor, although, given the number of discount categories available,[10] care must be taken to ensure that there is not double counting.[11]
Even although a rigorous application of the procedure for arriving at an end sentence has been followed, a Court may depart from the end result if there are special circumstances that justify the Court in doing so. There are five general categories where this may be done:
a) Where there is a high risk of re-offending, the Court may impose a longer sentence than might be warranted by the offence itself.[12]
b) There is a discretion vested in the sentencing judge to allow the promptings of mercy to temper the severity of a penalty that might otherwise be justified.
c) There may be personal circumstances peculiar to the offender that may require an allowance for the potential for rehabilitation by reducing an otherwise justified sentence.
d) In exceptional cases a sentence of imprisonment may have a disproportionate impact and cause exceptional hardship to an offender or his or her family as a result of personal circumstances such as ill health. In such a case the Court may reduce an otherwise justifiable sentence
e) A discount may be available where assistance has been provided to the authorities either relating to the offender’s own offending or the offending of others.
The process by which an outcome is reached must be clear and transparent and must be articulated by the sentencing Judge. In addition, judges must “do the arithmetic” and indicate, in a manner amenable to review, where they started from and how they got to the final result.[13]
To suggest that New Zealand Judges, by following the law as set out in the Statute and as directed by the Court of Appeal and Supreme Court are making it up as they go along or failing to “do right to all manner of people after the laws and usages of New Zealand” – the words of the judicial oath – ignores the reality of the situation. Those who would take sentencing from the hands of Judges overlook the fact that the Judges are applying the law and dealing with offenders on a case-by-case basis. Sentencing is a highly individualized judicial activity. Let it remain with the Judiciary.
[1] See NZ Herald 10 April 2023
“I am sure that most Kiwis are thoroughly sick of hearing activist judges finding excuses to enable them to fail to provide proper punishment for criminals. It is time sentencing was devolved to a separate authority, our judges are not up to it!” Neville Cameron, Coromandel.
NZ Herald 11 April 2023
Your correspondent who suggests devolving the role of sentencing to a separate body, (Herald, April 10), has a point, but before doing so there is an urgent need to appoint an independent body made up of members of the public, advised by politicians, the judiciary, the police and prison management, to establish the purpose of sentencing, something of which our judiciary appears to have seriously lost sight. Whilst I would not suggest this as a solution, if I were to tell these young ram-raiders that, if they were caught by the police they would have their hands cut off, as happens in some countries, it might well make them think twice. Gerald Payman, Mt Albert. Clearly this correspondent is unfamiliar with section 7 of the Sentencing Act 2002
NZ Herald 12 April 2023
“Commit one, get one (or more) free” seems to be the motto of the judiciary as the word “consecutive” appears to have been erased from their dictionary. Ray Gilbert, Pāpāmoa Beach.
[2] [2005] 3 NZLR 372.
[3] Moses v R [2020] NZCA 296.
[4] [2009] NZCA 450, [2010] 2 NZLR 298.
[5] Moses v R [2020] NZCA 296.
[6] Section 85 Sentencing Act 2002.
[7] Smith v Police [2018] NZHC 878.
[8] R v Mako [2000] 2 NZLR 170; Arona v R [2018] NZCA 427 at [61]; R v Jarden [2008] 3 NZLR 612 at [12].
[9] Kumar v R [2015] NZCA 460 at [81].
[10] For discussion see below.
[11] Lowenstein v Police [2020] NZHC 786.
[12] R v Ward [1976] 1 NZLR 588 (CA).
[13] R v S (CA64/06) [2007] NZCA 243 at [89]. See also R v Fanguna [2009] NZCA 316 where the reasons for the requirement are stated as that the offender and the community are entitled to know the reasoning process adopted by the Judge; a systematic approach ensures consistency of approach to starting points and discounts and the failure to properly articulate starting points and adjustments makes it difficult for appellate Courts to identify the weight the judge has applied to the various factors. See also R v Finn [2007] NZCA 257 where it was observed that the “arithmetic” required the Judge to identify the factors that may increase of decrease the seriousness of the offending, fix the bands within which the offending falls and identify the personal factors that may influence the outcome.