Appropriate recognition of mitigating factors in sentencing for serious offending: Philip v R [2022] NZSC 149

Sometimes, the person being sentenced has changed, through efforts at rehabilitation and new family connections, into a very different person from the one who committed the offence.

This could present a problem where sentence levels are prescribed in a systematic way which begins with a starting point based on the seriousness of the offence and the offender’s role. The starting point ascertained in this way could diminish the mitigating effect of the offender’s personal circumstances, because it may move the result towards a very high end sentence.

Nevertheless, judges can arrive at a sentence that is just in the particular circumstances. An illustration is Philip v R [2022] NZSC 149 (16 December 2022), where the offender had transported a total of 6 kg of methamphetamine from Auckland to Wellington.

Here, the Supreme Court ultimately accepted the mitigating discounts that had been applied by the sentencing judge in the High Court [57]. These were (at [13], [15]) 20 per cent for guilty plea, 30 per cent for personal circumstances (difficult background, mental health issues, demonstration of genuine remorse and significant steps towards rehabilitation by overcoming addiction), 10 per cent for the impact that a sentence of imprisonment would have on the offender’s young family, giving a total deduction of 60 per cent. Added to this was a deduction of 6 months for a period on electronically monitored (EM) bail.

All those deductions were from the starting point, and it was the starting point that was the most controversial aspect of this case. The High Court assessed this as 6 years’ imprisonment. The Court of Appeal, on appeal by the Solicitor-General, assessed the starting point as nine years (but because the guilty plea had been in response to a sentence indication of eight years, the CA accepted eight years as the starting point) [17]. The SC accepted the the HC’s assessment of starting point but added that it could be said to be a little below what was appropriate [41].

These differences arose from different perceptions of the offender’s role in the offending, a topic recently addressed by the SC in Berkland, summarised at [19] (see my note on 8 December 2022).

Was it necessary here to strain the starting point downwards to achieve a just sentence? The SC arrived at a sentence (not to be regarded as a precedent [60]) [1] that ensured Mr Philip’s immediate release from prison. He had served 7 months of the 12 months’ home detention imposed in the HC. Two judges, while agreeing in the outcome of the appeal and on all but one of the points in the reasoning of the majority [62], thought that the CA should have identified the appropriate sentence (it had assessed this as only two years and 11 months’ imprisonment, as the majority record at [45]) but then the CA should have dismissed the Solicitor-General’s appeal [74]. That would have avoided using a starting point which called into question the utility of the guideline judgments [73].

The implication is that where precedents point to a higher end sentence than seems just in the instant case, the court should ask whether enhanced recognition is deserved for changes in the offender’s life that demonstrate a negligible risk of reoffending. Familial connections, especially the effect of a child’s loss of a parent through imprisonment, are relevant in addition to the offender’s significant efforts at rehabilitation. There may be occasions where higher percentage discounts could be given than were applied in this case.

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[1] Arguably, it is contrary to the rule of law for a court to say that its decisions are not precedents: see John Gardner, Law as a Leap of Faith (OUP, 2012), p 210: “It is a violation of the requirements of the rule of law for a judge to … [deny] that there is a rule (in other words, claiming that the case under decision is being decided only ‘on its particular facts’).”

Has the voluntariness of confessions requirement become too complex? Beaver v R, 2022 SCC 54

When the highest court splits 5-4 on basic issues of evidence law, one has to ask whether something is fundamentally wrong with the way the issues are addressed by the law.

Reading Beaver v R, 2022 SCC 54 (9 December 2022) gives rise to questions like the following:

Is there too much room for the appellate court to defer to the findings of the first court in which the issues were determined? Arguably, deference erodes a defendant’s appeal rights. It is the judgement [spelt here with that middle e to emphasise reference to the mental process] of the appeal judges that should be applied to the issues.

Is the concept of the voluntariness of a confession being overloaded with other issues? Reliability, for example, is different from voluntariness. Does voluntariness really invoke a “delicate balance between individual rights and collective interests in the criminal justice system”? [46] Or was that balance struck a long time ago when it was decided (at common law) that confessions must be made voluntarily if they are to be admissible? Does treating the voluntariness rule as having “twin goals” over-analyse what is really a simple point? [1]

Are facts to be assessed holistically or does a “clean or fresh start” make previous breaches of rights irrelevant? Is it fair to assess police conduct disjunctively when the defendant experienced it conjunctively? Should the concept of a clean start be rejected, as the minority would do? [140] Or does it blend in with the holistic approach as the majority suggest at [99]?

When courts assess the reasonableness of an officer’s belief that the defendant has committed an offence, are they really making an objective assessment? Do judges inevitably put themselves in the place of a reasonable person, and in effect using the criterion of a reasonable judge are they less likely to disagree with the first instance judge?

Does the public interest factor require taking account of more than the seriousness of the alleged offence and the importance of the challenged evidence to the prosecution’s case? Does the public interest weigh on both sides of the balance (as it is in the public interest that everyone who is charged with an offence has their rights complied with, as well as that allegations of serious offences should be tried) so that it is too nebulous to be a useful consideration apart from the seriousness of the alleged offence and the centrality of the evidence? Is the reference to “cut both ways” at [130] unbalanced (compare my comment on this metaphor on 11 November 2020)?

Both the majority and the dissenting judgments make good sense in their own ways, so one must consider their respective premisses, and ask whether the problem is with the complexity of the law.

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[1] Funnily enough, in New Zealand our Evidence Act 2006 does not mention the voluntariness of confessional statements, which unless one thinks the Act is a code means that the topic is left to the common law. This could be sensible, for if it were in the Act, a requirement of voluntariness could later be repealed, which would have the consequence that the common law on the point would not be revived: see the Legislation Act 2019, s 32(2)(b). The provision concerning statements obtained by oppression (Evidence Act 2006, s 29) refers to a different issue: the propriety of the conduct of the interrogator. Voluntariness, however, is an issue directed to the volition of the speaker. Involuntariness occurs when a sleeping person speaks, or when a hypnotised person speaks, or when an anaesthetised person speaks, or when a person speaks when their volition is removed by a drug, for example the ravings of an alcoholic directed at an imaginary listener are probably involuntary. Tourette syndrome can produce involuntary speech. Voluntariness is a scientific question. Speech produced by torture is not involuntary, but it is inadmissible because of the improper conduct of the interrogator. The common law rule about confessions having to be "voluntary" (Ibrahim v R [1914] AC 559, 609) is best stated without that word: no statement made by an accused is admissible unless it is affirmatively shown to have been made without fear of prejudice or hope of advantage exercised or held out by a person in authority. That is the sense in which the term "voluntary" was used in Ibrahim: see R v Rennie [1982] 1 All ER 385. The common law rule has two parts: one concerns the behaviour of the person in authority, and the other concerns the effect of that behaviour on the accused. Does Canadian law, in using voluntariness as the touchstone (Beaver at [47], [57]) over-emphasise the effect on the accused, while (it might be said) New Zealand law neglects that except to the extent of requiring that the statement was "influenced"(s 29) by oppression or was made "in consequence" of the improper conduct of the interrogator (s 30(5))? At least the objective behaviour of the interrogator is likely to be less imponderable than the accused's voluntariness.

Sentencing methamphetamine dealers: the offender's role and background: Berkland v R [2022] NZSC 143

In Berkland v R [2022] NZSC 143 (7 December 2022) the New Zealand Supreme Court clarified several aspects of sentencing for dealing in methamphetamine. Some of the points addressed are applicable to sentencing generally.

A person who deals in methamphetamine may be described as having a significant role in the offending, as opposed to a lesser role or a leading role. The significant role comes between the alternatives, so there will be instances of significant role which are closer to a leading role, and others to a lesser role, and some of middling status in the significant role category. But the categories are porous, not siloes (at [65]).

A distinction is now clarified between those in the significant role category who have a management role and those who have an operational role. Managers are at the more serious end of the significant range, and the offending of operators is of lesser seriousness. Managers act under direction of a leader, and this entails directing others in the operation, whether by pressure, influence, intimidation or reward. Their remuneration will be out of proportion to the relatively lesser risks they are exposed to. Operators and those whose role is at the lower end of the significant range are exposed to risks that are greater than their proportionately lesser remuneration (at [68]-[71]).

Another, and more generally applicable, aspect of sentencing addressed in this decision is the required nexus between the offending and potential mitigating factors arising from the offender’s background. Various descriptions of this nexus had been used in the cases, such as an “operative cause” or a “proximate cause”. Those expressions are now replaced by the lower standard of a “causative contribution”, meaning that the offender’s background may have mitigatory effect if it makes a causative contribution to the offending.

The background factors of addiction and of historic deprivation and discrimination were extensively discussed by the Court, as was the use of various sources of information to inform the sentencing judge of relevant matters.