The Court of Appeal set out the approach to calculating sentences in criminal matters in Moses v R [2020] NZCA 296. This decision set out a two-step methodology:

1. the first step, following R v Taueki [2005] 3 NZLR 372 (CA), calculates the “adjusted starting point”, incorporating aggravating and mitigating features of the offending;
2. the second step incorporates all the aggravating and mitigating factors personal to the offender, including any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

The Court of Appeal then said that “the court fixes all second-step uplifts and discounts by reference to the adjusted starting point under this methodology.”

This means that sentencings should follow a structure as follows:

1. arrive at the adjusted starting point;
2. apply any discounts to that starting point;
3. then add to the discounted adjusted starting point any uplifts for aggravating factors personal to the offender.

A common error in District Court sentencings is for the starting point and uplifts for personal aggravating factors to be added together and then the discount for personal mitigating factors such as guilty pleas is taken from that total. According to the Moses methodology this is clearly wrong but the practice persists.

A useful analysis of this common error is undertaken by Becroft J in the case of Mo’unga v R [2023] NZHC 1967 in which a 42-month starting point was uplifted by four months for aggravating personal factors and a 35% discount (20% for guilty plea, 15% for personal factors outlined in a s 27 Sentencing Act 2002 report) was applied to the 46 months.

Becroft J considers from whence this mistaken practice originates:

[30] It might be that the use of the words ‘adjusted starting point’ in Moses is causing some confusion. This is a relatively new phrase. In some cases, clearly there has been a (mistaken) understanding that the ‘adjusted starting point’ results from the uplifts for personal aggravating factors such as offending while on bail or previous convictions being added to the starting point. In my experience, it is this very misunderstanding which appears to have contributed to the widespread District Court practice of subtracting discounts for personal mitigating factors from the ‘starting point’ of the sentence plus any uplifts for personal aggravating factors…

The logic of the Moses approach is summarised in the passage below which is worth quoting at length [emphasis in bold added]:

[36] Leaving aside the reasons why Moses is not always being followed correctly, the short point is that because it is authority from the Court of Appeal it must be followed in the lower courts. And there is a logic to the methodology – it ensures that defendants who receive uplifts for personal aggravating factors do not illegitimately obtain a benefit by that uplift being reduced by the application of a discount to it.

[37] With respect, the proper methodology in this case was to subtract the 35 per cent reduction the Judge allowed from the 42-month figure, not from the uplifted 46-month figure. Had the Court done so, the sentence would have been calculated as follows:

(a) The start point of 42 months would be reduced by 35 per cent to reflect the discounts provided to Mr Mo’unga. 35 per cent of 42 months is 14.7 months, which I would round to 15 months for the benefit of the defendant. Subtracting that 15 months from the 42 month figure results in 27 months.

(b) The total 4-month uplift should then have been applied to the resulting 27-month sentence.

(c) An end sentence of 31 months’ imprisonment, or two years and seven months’ imprisonment, should have been reached. This is a month longer than the sentence of two years and six months’ imprisonment that was calculated by the Judge.

This is not a big difference but it is significant. The core logic holds that the discount should not apply to personal aggravating factors.

For example: a 10-year adjusted starting point and a four-month uplift would work out as 120 months (the adjusted starting point) + 4 months (uplift) = 124 months -35% (43.4 months) = 80.6 months which would be rounded-up to 81 months.

By the Moses method: 120 months – 42 months (35% discounts) = 78 months + 4-month uplift = 82 months

Some mitigating factors, such as credit for time on electronically-monitored bail, are applied directly to the end sentence. This is dealt with in Moses at [48]:

This methodology does not preclude credit for some mitigating factors being assessed by reference to what would otherwise be the end sentence (that is the product of step 2), where that is appropriate. For example, credit for time spent on electronically monitored bail is commonly calculated in that way.