Unable to prevent injustice?

Our little nation (or as we call it in pandemic times, our team of five million) was agog with disbelief today at news of an injustice that the courts could not correct: Fitzgerald v R [2020] NZCA 292.

Our “three strikes” legislation required the court to impose the maximum term of imprisonment available on the defendant. In a Wellington street he had kissed a stranger on the cheek and had assaulted her companion. While the victims no doubt experienced some trauma, they may not have known that Mr Fitzgerald was mentally disabled.

The offences themselves would have not warranted terms of imprisonment. It was only Mr Fitzgerald’s record of more serious sexual offending that set him up for the maximum penalty for what he was charged with. Seven years’ imprisonment.

All four of the judges involved – the sentencing judge and the three Court of Appeal justices – agreed that the result was manifestly unjust. The one Court of Appeal justice who dissented insofar as he found an interpretive solution laid the ground for an application for leave to appeal to the Supreme Court.

Amazingly, it took the Court of Appeal 10 months from the hearing to deliver its judgments.

Apart from wrangling over whether a discharge without conviction can be ordered when a sentence is compelled by statute (and one has to wonder why “minimum” and “maximum” were thought to mean the same thing, and in any event they were irrelevant as here the penalty was fixed), the question is naturally raised: could there be some alternative way of avoiding the injustice?

In the circumstances, charges of offensive behaviour were available, or even just two charges of common assault (this was the charge he faced in respect of the second victim). Maximum penalties of $1000 fine, or 1 year in prison respectively.

Was the decision about what charges to bring against Mr Fitzgerald made reasonably? Judicial review of charging decisions is available, and the issue in such proceedings would be whether prosecution for the particular charges that were filed was in the public interest. Plainly, the judges here must have had doubts about that, in view of the inevitable penalty upon conviction. The prosecutor, when deciding what charges to file, should be guided by the seriousness of what the defendant actually did, not the seriousness of the most serious charge that could be filed. The seriousness of what the defendant actually did should be assessed by the likely starting point for sentencing. Here it is clear that a fine or a community based sentence would have been an appropriate measure of the seriousness of the defendant's conduct.

What, though, if it is now too late to review the decision on choice of charges?

The only other “thinking outside the box” remedy that occurs to me at the moment is the stay of proceedings. For this, the Court would have to be satisfied that continuation of the proceedings would undermine public confidence in the integrity of the judicial process. Does judicial paralysis in the face of an unjust result undermine public confidence in the integrity of the judicial process? Finding itself faced with having to impose a manifestly unjust sentence, a court might consider whether to stay the proceedings before that point, even, perhaps, without prejudice to the filing of lesser charges or the addition of lesser charges to the charge list, or the substitution of convictions for lesser offences.

See Osborne v Worksafe New Zealand [2017] NZCA 11 at [36].

Still, the case may not be over, so I say no more.

Update: the Supreme Court granted leave to appeal: Fitzgerald v R [2020] NZSC 119 (3 November 2020), and allowed the appeal: Fitzgerald v R [2021] NZSC 131 (7 October 2021), noted here. The High Court, holding that the decision to prosecute the serious charge was a breach of Mr Fitzgerald's right to be free from grossly disproportionate punishment and awarded him compensation: Fitzgerald v Attorney-General [2022] NZHC 2465 (27 September 2022).

Should guilty pleas be mitigating factors?

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.