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IN THE COURT OF APPEAL OF NEW ZEALAND
CA170/2009 [2009] NZCA 450
THE QUEEN
v
RAYMOND EVEREST HESSELL
Hearing:13 August 2009
Court:William Young P, Chambers, O'Regan, Robertson and Arnold JJ
Counsel:P J Boylan for Appellant
C L Mander and J Murdoch for Crown D J Boldt as counsel assisting the Court
Judgment:2 October 2009 at 10 am
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No
PART 1: GUILTY PLEAS GUIDELINE
Discordant appellate approach to guilty pleas [1] The format of this judgment [7] The justification for a reduction [13] Overall approach [14] Guilty plea as a discrete factor [21] Remorse [24] First reasonable opportunity [29] Reduction where the prosecution case is strong [35] Willingness to plead guilty [40] Factors that may change the calculation [45] Sentences and orders to which the reduction applies [49] Sexual offending [55] Murder [63] Application of this guideline [74]
PART 2: THE APPEAL
Approach [77]
The nature of the appeal [78]
Issues on the appeal [91]
Discount for the guilty pleas [94]
Home detention [100]
Disparity with the mother’s sentence [105] Result [113]
PART 1: GUILTY PLEAS GUIDELINE
Discordant appellate approach to guilty pleas
[1] This court has long recognised that a plea of guilty should be a factor in a defendant’s favour on sentencing. For instance, in R v Taylor [1968] NZLR 981 at 987, this court quoted with approval the statement of Edmund-Davies LJ in R v de Haan [1968] 2 QB 108 at 111 that “a confession of guilt should tell in favour of an accused person, for that is clearly in the public interest”. This court in R v Ripia [1985] 1 NZLR 122 spoke, perhaps for the first time, of the need to recognise a “discount” for a plea of guilty: at 128. Traditionally there was no firm rule as to the manner in which a sentencing judge was to take a plea of guilty into account. It depended on the circumstances of the particular case: R v Amoroa CA284/90 15 March 1991. Indeed, as late as 2000, in R v Mako [2000] 2 NZLR 170, this court said at [14] that it had “resisted laying down any specific quantum or proportion for such discount because of the widely varying circumstances in which [a guilty plea] might be entered”.
[2] This court’s traditional approach to how guilty pleas should be treated was symptomatic of the courts’ general approach to sentencing, with judges vested with broad discretions. Particularly since the passage of the New Zealand Bill of Rights Act 1990, however, such unfettered discretions have increasingly been viewed as unfair. In the case of guilty pleas, it was being asked, on appeals and elsewhere, whether it is fair if offender A is sentenced by a judge who believes in tiny discounts for guilty pleas while offender B, guilty of like offending, is lucky enough to be…
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
R v Hessell [2009] NZCA 450
Case
[2009] NZCA 450
Decision Date
CaseChat Overview and Summary
In R v Hessell, the Court of Appeal of New Zealand dismissed the appellant's appeal against his sentence. The appellant, Raymond Everest Hessell, was convicted of nine counts of sexual conduct with two girls, one aged 14 and the other 15, contrary to s 134(1) of the Crimes Act 1961. Hessell was sentenced to two years and eight months' imprisonment by Heath J. The appellant appealed on three grounds: the adequacy of the discount for his guilty pleas, the failure to impose a sentence of home detention, and the disparity between his sentence and that of his co-offender, the mother of one of the victims.
The Court of Appeal first addressed the discount for the guilty pleas. The appellant argued that the judge failed to recognise the "special" circumstances of the case, which shifted primary offender status from him to the mother. The Court disagreed, holding that the appellant's pleas were truly on the eve of trial and that the judge's discount was in line with existing appellate authority.
Second, the Court considered the failure to impose a sentence of home detention. The Court held that Heath J was justified in concluding that a sentence of home detention would not respond adequately to the nature and extent of Hessell's offending and would not provide adequately for the interests of the victims.
Lastly, the Court examined the disparity between Hessell's sentence and that of the mother. The Court found that any disparity between the sentences was entirely justified, as Hessell had none of the mitigating factors that applied to the mother. The Court concluded that the appellant's appeal failed on all grounds and dismissed the appeal.
This case highlights the importance of considering the timing of guilty pleas and the need for consistency in sentencing. The Court of Appeal emphasised the significance of early guilty pleas and the benefits they bring to victims, witnesses, and the judicial system. The Court also underscored the importance of tailoring sentences to the individual circumstances of each case, taking into account the nature and extent of the offending and the interests of the victims.