Kiwiblog

The Court of Appeal released last week their decision in R v AM. The individual decision about MA is not of as much interest as the fact the Court has used the case to quite radically change the way courts assess what term of imprisonment should apply.

Rape has a maximum sentence of 20 years imprisonment and in 1994 the Court of Appeal in R v A ruled that the starting point was 8 years, and there was a large number of factors which could push that up or down.

The result of R v A is that almost all sentences tended to cluster around the starting point, and relatively few got near the maximum, or at the other end, got near the minimum. It also led to some lack of consistency.

In R v AM, the Court of Appeal has devised for bands of offending for rape, and three for unlawful sexual connection. They are:

1. Rape 1 – 6 to 8 years
2. Rape 2 – 7 – 13 years
3. Rape 3- 12 – 18 years
4. Rape 4 – 16 – 20 years

And

1. USC 1 – 2 to 5 years
2. USC 2 – 4 to 10 years
3. USC 3 – 9 to 18 years

Before I detail what qualifies for each band, I have to say I think the decision is a significant improvement for sentencing. It has bee frustrating that no matter how vile the crime, very few people ever get close to the maximum sentence. This should result in the very worst rapes getting sentences close to the 20 year maximum.

The decision gives a lot of examples of how existing cases would fit into each band, and whether they would be at the lower or upper ends. It is a very detailed sentencing guide. To some degree it shows why there is no need to have a Sentencing Council, as legislated by the last Government. The Court of Appeal looks to be filling that niche quite nicely.

The description of the activity which falls in each band is summarised here:

1. Rape Band 1 (6 to 8 yrs) – offending at the lower end of the spectrum where there are no aggravating factors, no serious violence, no abduction, the victim is not very young or very old.
2. Rape Band 2 (7 to 13 yrs) – involves moderate violence, pre-meditation, a rape involving more than one offender, or an especially vulnerable victim
3. Rape Band 3 (12 to 18 yrs) – offending with serious additional violence, wit multiple (three or more) aggravating factors. For particularly cruel, callous or violent rapes.
4. Rape Band 4 (16 to 20 yrs) – for multiple offending over considerable periods of time, gang or pack rape.

These guidelines are binding on all lower courts from the 31st of March. It will be interesting to see how it impacts sentencing. The Court has said it does not expect the average term of imprisonment to increase (it has already increased from 7 yrs 3 mths in 1996 to 8 yrs 3 mths) but that there will be a greater variety of sentences – more at the top end, and more at the lower end.

It is worth noting that the above focuses on the initial sentence for the offending. Courts also then take into account the circumstances of the offender. Also if an offender pleads guilty their setence is normally reduced by 10% to 33% depending on how early in the process they plead guilty.

The case judgement, from a legal point of view, is a very interesting one. On an emotional front, it was pretty gruesome reading the summarised details of around 52 rape and unlawfu sexual connection cases. I can only imagine what the trauma must have been like for the victims.

The Alliance has just won a court case against the Electoral Commission. The judgement is here – CA6392008.

The Court of Appeal has ruled that the Electoral Commission must give political parties time for both an opening and a closing address. In 2008 the Commission gave the Alliance (which got 0.07% of the vote in 2005 and 0.08% in 2008) and ten other minor non-parliamentary parties one minute for an opening address and no time for a closing address, out of the total 72 minutes made available from broadcasters for opening addresses and 30minutes for closing addresses.

Now s73(1) of the Broadcasting Act says:

In respect of each election period, the Electoral Commission must allocate to political parties, in such proportions as the Electoral Commission considers appropriate, the time that TVNZ and RNZ have made available for opening addresses and closing addresses in accordance with section 71A.

The question was whether the Commission must give each party both an opening and closing address.

The High Court found it would be wrong under the Bill of Rights Act to give a political party no time at all for either opening or closing, but that s73 refers to a single allocation of time, and some components of that allocation may be zero, so long as the total allocation is not zero.

The Court of Appeal has sided with the Alliance and ruled that the Act requires each party to get time for both an opening and closing address, despite the fact they had only 30 minutes of closing time for 18 parties.

What is interesting is that the Court of Appeal suggests TVNZ breached the ACT by only providing 30 minutes for closing addresses, as this is not enough time to divide up between 18 parties, considering the parties on 40% in the polls are meant to get more time than those at 0.07%. TVNZ may face problems if they do not increase the allocation next election.

The Court also deals with the issue of whether the Electoral Commission should have given more than $10,000 to non-parliamentary parties for their broadcast advertising. The Commission escapes a formal ruling from the Court, but it notes that their reference to the amount being enough for a radio campaign was in error, as it suggests they knew the amount was not enough for a television campaign.

So the Electoral Commission gets pretty battered by this decision. But the good thing is, the law is now clearer. And hopefully the law will also be changed so parties can spend their own money purchasing broadcast advertising, rather than only be allowed to use taxpayer money.

The Court of Appeal is hearing today an appeal in the case John Boscawen has brought against the Attorney-General over whether the Electoral Finance Act is consistent with the Bill of Rights Act.

I blogged back in June the High Court decisions:

As I said earlier the protection of parliamentary privilege saw the challenge to the Electoral Finance Bill dismissed. The similar case against the Electoral Finance Act also was dismissed on the grounds it was asking the Court for an abstract ruling (ie just asking whether the EFA breached the Bill of Rights Act).

The hearing today is before Appeal Justices Glazebrook, O’Regan and Arnold. Originally it was to be heard by just one permament Court of Appeal Judge and two High Court Judges, but now all three Judges hearing it are permament members of the Court of Appeal – possibly an inidcation of the importance of the case?

A copy of the appellants submission is here: boscawen-submissions-ca.

What was sought:

In the High Court proceeding, the appellants sought declarations that provisions in the Electoral Finance Act 2007 (“EF Act”) were inconsistent with fundamental civil and political rights affirmed by the Bill of Rights Act. As the offending provisions in the EF Act germinated from the original Electoral Finance Bill (“EF Bill”), the appellants also claimed that the Attorney General should have drawn them to the attention of the House of Representatives during the legislative process. The appellants sought declarations that the Attorney breached his statutory duty under s.7 by failing to do so.

And what happened in the High Court:

Clifford J in the High Court granted the Crown’s application and struck out the ASOC in its entirety. Clifford J expressed reluctance to make declarations of inconsistency, particularly on an abstract basis, without clear jurisdictional guidance from this Court1. He also followed the 1994 High Court decision of Mangawaro Enterprises Limited v Attorney General (“Mangawaro”)2, and obiter dicta comments from McGrath J in Awatere Huata v Prebble (“Awatere Huata”)3 and found the Attorney General’s exercise of statutory power under s.7 to be non-justiciable.

Most of the argument will be around whether the Court can make a declaration of inconsistency regarding a law and the Bill of Rights Act. To date no court has done so, but Boscawen cites previous judgements that have alluded to the desirability of doing so. It will be an interesting outcome either way.