It’s time for some devil’s advocacy.
Should a guilty plea be a factor that mitigates sentence?
Yesterday’s revision of the methodology for calculating the mitigating effect of a guilty plea, Moses v R [2020] NZCA 296, gives such pleas in most cases additional weight.
The Court stated the principal justification for a guilty plea discount (at [22]):
“...benefits to the judicial system and participants in it supply the principal justification for a guilty plea discount.”
What are these benefits?
If the Court means cost saving, that is unconvincing. With backlogs of cases to deal with, the annual costs of the courts and the prisons will be the same. Guilty pleas simply result in the pleaders dropping out of the queue of people awaiting hearings so that those further behind may move forward. There is no chance of the courts running out of work and being able to close down, which would be the only way money could be saved.
And as far as prisons are concerned, a shorter sentence for a guilty pleader will not save money, because that person’s cell will immediately be occupied by someone else. The prisons are not going to run out of detainees, so they will have their normal annual costs. The only way to save money in the prisons is to close them.
So, no money saved, just a bit of queueing courtesy that reduces waiting time for some individuals.
The Court was right not to seek moral grounds to justify guilty plea mitigation. Utilitarianism doesn’t fit: the only added happiness is to be found in those who benefited from queue courtesy, and this may well be offset by the unhappiness caused to victims who see their assailants receiving lighter sentences. Nor does pragmatism, as no cost saving is achieved and there is a risk that some innocent people will be induced to plead guilty rather than face the risk of loss of mitigation in the event that they are wrongly convicted. And deontological justification doesn’t work either: true enough, the courts have a duty to apply the Sentencing Act 2002, which requires plea to be taken into account, but what is the moral basis for that?
I can remember when the idea that an offender should receive a sentence discount for pleading guilty would have been scoffed at. It was sufficiently controversial for me to write about it in an article, “Sentence Discounts for Pleas of Guilty” [1986] New Zealand Law Journal 151. What would have been, and still is, acceptable, is a reduction in sentence for genuine remorse that demonstrates an effort to make amends. The fact that genuine remorse will go together with a guilty plea does not mean that the guilty plea should be a separate ground for mitigation.
I don’t ignore the argument that the saving of stress to witnesses who would otherwise have to give evidence and be cross-examined is a consideration deserving of recognition in mitigation of sentence. But usually that will be a sign of genuine remorse, deserving of recognition on that separate ground.
The more you think about it, the stranger it seems. No one will say so, because defence lawyers cannot object to a mitigating factor, and prosecutors cannot ask the courts to ignore precedents. Parliament can’t change the law, because the economic argument that guilty pleas save costs is so convincing to most people, and a guilty plea is so easily confused with remorse.
