"Starting points" for sentences

The starting point for a sentence is "the true point of comparison with other offending before individual aggravating and mitigating factors are taken into account. Fixing the starting point is the mechanism for seeking consistency in sentencing": R v Mako 23/3/00, CA446/99. The assessment of starting points is not capable of exact arithmetical gradation or scaling: R v Norfolk 27/8/01, CA195/01. The cases reveal two approaches to starting points, as was noted in R v Hooker 30/8/01, CA154/01, at para 7:

"…it is perhaps unfortunate that the term ‘starting point’ is used in judgments in two different ways. Sometimes the term is used to reflect the opening position before a consideration of aggravating and mitigating circumstances. At other times the term is used to reflect the position before mitigating circumstances are taken into account; that is, aggravating features are built into the so-called starting point."

In R v Gemmell 23/10/01, CA267/01 it was held that the starting point should reflect all aspects of the case except the plea (citing R v Ataria 15/12/98, CA318/98).

There seems to be a sort of halfway house approach in practice, according to which the starting point is measured by taking into account aggravating features. It is respectfully suggested that this is the preferable method. An interesting illustration is R v Raheke 8/7/04, France J, HC Napier S8/2004 (above, para 1808), where although the Crown submitted that the starting point should be established before aggravating features were added (para 9 of the sentencing remarks), France J took the aggravating features into account in setting the starting point (paras 18 and 20 of the sentencing remarks).

This logically sensible approach was taken while at the same time her Honour was guided by the approach in R v Bradley and Galvin 20/2/04, Williams J, HC Rotorua CRI-2003-063-8523. However in that case Williams J had set a starting point, then (apparently) added aggravating features (para 22 of his Honour’s remarks). In referring to the desirability of consistency, in following the approach of Williams J, France J found guidance in R v Wallace and Christie [1999] 3 NZLR 159, (1999) 16 CRNZ 443 (CA) in setting the starting point.

Thus although both Judges found assistance in Wallace in setting the starting point, their approaches to the relevance of aggravating features appears to differ. In Wallace the Court did not specify which method was to be preferred, but at para 30 of the judgment, after setting out summaries of relevant cases, the Court referred to starting points before allowance was made for mitigating factors. Again, in para 36, the Court referred to either method producing an appropriate result in relation to Wallace, whose appeal was dismissed. However, in R v Arthur 17/3/05, CA382/04, at para 26, the approach was said to be to set the starting point before taking into account aggravating features (such as the existence of relevant previous convictions) and mitigating features (such as a plea of guilty).

The above discussion of starting points is predicated on the meaning of "mitigating factors" as factors that are not connected with the offending but that may properly be taken into account as diminishing the final sentence. This is the meaning of "mitigating factors" used by DA Thomas in his analysis of English sentencing. A different usage has been employed by the Court of Appeal, whereby "mitigating factors" include matters that concern the commission of the offence, as well as those that concern the circumstances of the offender: R v Taueki 30/6/05, CA384/04, a decision of the Full Court giving guidelines for sentencing for violent offending involving grievous bodily harm. Accordingly, the "starting point" may now be understood as the sentence appropriate when aggravating and mitigating circumstances relating to the offending are taken into account, but excluding aggravating and mitigating features personal to the offender. The starting point is the sentence, determined in this way, for an adult offender after a defended trial: Taueki para 8.