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IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA167/2019 [2020] NZCA 296
BETWEEN
VALENTINE ATIRIANA MOSES Appellant
AND
THE QUEEN Respondent
Hearing:
30 April 2020
Court:
Kós P, Miller and Collins JJ
Counsel:
V L Thorpe and A W Clarke for Appellant M J Lillico and ZWQ Andrew for Respondent E A Hall and L Scott for Criminal Bar Association of New Zealand as Intervener
Judgment:
15 July 2020 at 11.00 am
JUDGMENT OF THE COURT
AThe application to adduce a s 27 report on appeal is granted.
BThe appeal is allowed.
CWe quash the sentence passed below and substitute a sentence of seven years, five months imprisonment.
The Sentencing Act framework for sentence calculation[4] The starting point: R v Taueki[5] Uplifts and discounts must maintain proportionality[8] What the Act says about a guilty plea discount[11] The rationale and three-step methodology: Hessell v R[12] Calculating the guilty plea discount[27] Other mitigating factors reduce the guilty plea deduction[30] The three-step methodology in practice[39]
Should the Court depart from Hessell?[44] A modified methodology for calculating guilty plea discounts[45] Ms Moses’s sentence appeal[50]
The facts[50] The sentencing[54] The appeal[59] The starting point[60] Personal mitigating factors: the s 27 report[63] Sentence calculation[71]
Result[72]
In this judgment we revisit the Court’s 2009 judgment in Hessell v R, which adopted a three-step methodology for sentencings affected by a guilty plea.[1] We alter that methodology to require a two-step approach in which any discount for a guilty plea is fixed at the second step.
Ms Moses is one of several dealers in methamphetamine who were sentenced under the former guideline judgment, R vFatu,[2] and whose appeals were adjourned pending delivery of the Court’s current guideline judgment in Zhang v R.[3] We also consider, by reference to the Zhang guidelines, whether her sentence was manifestly excessive.[4]
[4]As with other appeals brought before Zhang v R was delivered, we approach the appeal not as a search for error in the court below but by assessing the sentence against the Zhang guidelines.
We address the methodological issue before turning to the circumstances of Ms Moses’s appeal.
The three-step methodology
The Sentencing Act framework for sentence calculation
The Sentencing Act 2002 establishes the framework within which this Court has developed sentencing methodology. The Act records purposes for which offenders may be sentenced and lists principles and aggravating and…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Moses v R [2020] NZCA 296
Case
[2020] NZCA 296
Decision Date
CaseChat Overview and Summary
Valentine Atiriana Moses appeals against her sentence for possessing methamphetamine for supply. The appeal follows the Court's recent guideline judgment, Zhang v R, and concerns the starting point and the three-step methodology for calculating a guilty plea discount, which was established in Hessell v R. The Court revises the methodology, substituting a two-step approach in which the guilty plea discount is fixed at the second step. The appeal also concerns the refusal to adjourn for a s 27 cultural report. The Crown accepts the appeal in relation to the three-step methodology and the refusal to adjourn. The appeal against the starting point is dismissed. The appeal against the refusal to adjourn is allowed and the sentence is reduced from eight years four months to seven years five months imprisonment. The case concerns sentencing methodology and the assessment of personal circumstances, and it may be of general application.