Court of Appeal wheedling for guilty pleas

October 2nd, 2009

The Court of Appeal has just released new guidelines to govern the ‘discount’ for a guilty plea. In essence they are:

"The amount of the reduction is to be determined according to a sliding scale, with three
benchmarks on that scale:
■ First reasonable opportunity – 33% ( 1/3 )
■ Status hearing or callover – 20% ( 1/5 )
■ Three weeks before trial or hearing – 10% ( 1/10 )

– A guilty plea at the conclusion of the prosecution case does not warrant any reduction.

– A guilty plea must be recognised in setting the amount of a fine, or the length of a
community-based sentence, sentence of home detention, or sentence of imprisonment. It
may also affect the length of an order disqualifying the offender from driving. A guilty
plea does not affect the imposition or amount of a sentence of reparation."

In my view they’ve got it all back to front.

The outcome might be the same, but the tone and impact would have been different, especially for victims, if they’d said something like:

“A person guilty of an offence should when caught be ashamed of themselves, anxious to minimise further trouble and cost to the community, and eager to atone for their offence.

Accordingly there will be no discount for a guilty plea. Prompt acknowledgement is the least that should be expected.

But there will be an increase in penalty where the guilty person has shown so little remorse as to put the community and the victims to the expense and anguish and delay of a trial, pointlessly.

Accordingly here is the scale of sentence increases that will apply to persons who are found guilty or admit guilt late in the process

……"

Reversing the presumption, from a bonus or discount for a guilty plea, to a penalty for failing to show shame or remorse does not affect innocent peoples’ rights to defend themselves. There is nothing in the presumption of innocence (it is up to the state to prove guilt, and not for the accused to establish innocence) that says a failure to confess should not be taken into account in sentencing after the facts (guilt) is proved.

Nor need the different emphasis change the actual sentences served.

But it would underscore the difference we need to drive through our law, away from apologising to offenders for punishment and wheedling them, and back to upholding the fundamental values that underpinned our culture, and Maori and Polynesian cultural mechanisms to deal with wrong-doing.

There must be a cost to wrongdoing which is quite different from a therapeutic ‘treatment’ for the offender. It is time to ensure that every message from the courts says that vindicating innocent victims is not a game.

Shame and evident remorse should be minimum expectations.

We must defend the mechanisms that protect from false convictions, even compensate those wrongly charged. But all the other elements should show that wrongdoers are not being wheedled to respect the law – it will be costly for them if they do not.

[ Nikki Pender has reminded me that the Sentencing Act in s 9(2) (b) says the Court must take into account as a mitigating factor "whether and when the offender has pleaded guilty". That could make it harder for Courts to use the failure to plead guilty as an aggravating factor, though the list of aggravations in s 9 (1) is not exhaustive. Still, when I tried to have section 9 amended as suggested above, the then government justified it to Parliament on the grounds that it was just a codification of existing judge-made law. Time the judges changed their approach and for the Government to change it for them.]

Filed under Criminal Justice

Comments

I totally agre with this sentiment.
my first step would be to change the name “Corrections dept” to Punishment dept”. The rest is surely a natural progresion

But isn’t your proposal the same as the current practice, just with the terms reversed? A person is penalised for not pleading guilty, just we call the the first sentencing level a discount on the tariff while you would call it the actual tariff.

Either way a defendant is worse off if they are found guilty than if they plead guilty early on.

I suppose the difference is the level of the actual tariff, but if the courts adopted your proposal then the tariffs would have to change a bit to allow for uplifts when there are aggravating features as well.

[ FES The sentences served could be the same if the Court adjusted the tariff. They should do it.
There is a big difference in the way victims feel about it. They feel that ‘normal’ should be remorse, shame or at least humility and a desire to make amends. A not guilty plea from a guilty person negates all that. Whatever their mouthing after conviction the not guilty plea says it all.
If normal is to confess and make amends when you’ve hurt someone else then there should not be a discount for being normal. There should be a penalty for not conforming to normal decent behaviour.
I was interested to note the response reported today of merchants freed by the settlement with the Commerce Commission to charge a premium to recover credit card scheme charges. They are said to be likely instead to give a discount for non-credit card transactions. The economic effect is the same – the emotional perception is significantly different. SLF

Harry YoungThe man who murdered my daughter got credit for remorse and was given the absolute minimum non-parole period that the law allowed. He pled not guilty and maintained that plea through the depositions, trial, appeal and Supreme Court appeal.
He has never apologised or shown the slightest remorse to us, which in his Samoan culture is a sign of greater disrespect, because Samoans are traditionally big on remorse, apology and atonement. Of course, cultural sensitivity only works one way, like NZs racist immigration policies which require a far higher standard of education, qualification, ability to earn and pay taxes etc. from white people.
So why did the Judge give credit? Well……. I don’t know, because the reports the system obtains and which the Judge read are not available to victims. This, of course, is to protect the murderers human rights.
So he finally told a prison psychologist he was sorry he killed two innocent young girls in a fit of temper? Well he would, wouldn’t he. Bullshit. No doubt he will ‘find God’ and be a ‘new, gentle, loving person in time for parole hearings.
Judges are arrogant enough to ignore the Sentencing Act and there is no way to challenge it, unless the CPS do, which they won’t…. Read more
It is academic whether long sentences are reduced or shorter sentences increased, but there has to be an incentive to stop obviously wrong ‘not guilty’ pleas and years of appeals where the only losers are the victims and the taxpayer, who funds it.

lets start from giving them the full sentence with no parole and work our way down instead of letting them have a third off for starters.

I am a supporter of capital punishment I must say.
where there is no doubt the offender is the offender.
for all the victims I think that says more than a sorry.
it says never again.

The presumptuousness of the pretence of innocence. Maybe there're degrees of innocence as of guilt that need to be exposed through due process.(The latter-day Desfarges should stick to their knitting)