Reducing fines for statutory liability RMA offending – discount for guilty plea

Thursday, August 6, 2020

A recent Court of Appeal decision in the criminal context has modified the Court’s approach to calculating guilty plea discounts. If insurers ensure the decision is systematically applied to all Resource Management Act 1991 (RMA) sentencings, where fines are covered by statutory liability policies, the decision may result in greater discounts, and therefore reduced monetary penalties.

Under the law as it stood previously, sentencing involved a three-step process:

  1. Determination of the adjusted starting point, which incorporates the aggravating and mitigating factors of the offending;
  2. Determination of the discount or increase in sentence which relate to the aggravating and mitigating factors of the offender; and
  3. A discount of up to 25% for entering a guilty plea, determined by the date at which the plea is entered.

The discount identified at 2 above would be applied separately, after the discount at 3 above was deducted, and not in a cumulative fashion.

In Moses v R [2020] NZCA 296 the Court of Appeal has adjusted this methodology, combining the second and third steps. An example of this adjustment in approach is shown below.

 

Three step method - old law

Two-step method - new law

Step 1

Determine adjusted starting point for the offence

$500,000

Determine adjusted starting point for the offence

$500,000

Step 2

Discount for personal mitigating factors, e.g. previous good character and making amends (15%)

= $500,000 – $500,000 x 15%

= $425,000

Discount or increase for the sum of personal mitigating factors (15%), and guilty plea discount (25%)

= $500,000 – $500,000 x (15% + 25%)

= $500,000 - $200,000

= $300,000

Step 3

Discount for early guilty plea (25%)

$425,000 – $425,000 x 25%

= $318,750

 

Difference on the two methodologies: $18,750 ($318,750 - $300,000)

It should be apparent that the value of a guilty plea is now substantially greater, as the discount is removed from a larger starting value.

The Court was quick to note that despite this apparent reduction in end sentences, judges are expected to continue the ordinary practice of taking a step back and looking at the end result to ensure it is just. However, from a practical perspective while many judges may have a strong instinct of what sentence is likely to be just in the context of offending which comes before the courts frequently, the approach to setting fines in a context such as RMA offending is often a more mathematical exercise.

This change in methodology is likely to result in reduced sentences, particularly in circumstances where a defendant already has the benefit of a number of personal mitigating factors. If insurers ensure that the Court’s approach is systematically applied to all statutory liability RMA offending, where fines are covered, the decision has the potential to save insurers money.

For further information please contact Chris Shannon.

 

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

 

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