Winkelmann CJ, William Young, Glazebrook, Ellen France and Williams JJ
Counsel:
L C Ord and E T Blincoe for Appellant SC 40/2020 R N Park for Appellant SC 64/2020 S K Barr and A J Ewing for Respondent in SC 40/2020 and SC 64/2020 C P Merrick, K Snelgar and J R Spelman for Te Hunga Rōia Māori o Aotearoa | The Māori Law Society as Intervener
Judgment:
7 December 2022
JUDGMENT OF THE COURT
A Mr Berkland’s appeal in SC 40/2020 is allowed. His sentence of 12 years and nine months’ imprisonment, together with a 50 per cent MPI, is quashed, and a sentence of eight years and eight months’ imprisonment is substituted.
BMr Harding’s appeal in SC 64/2020 is allowed. His sentence of 28 and a half years is quashed, and a new sentence of 21 years is substituted. There is no adjustment to the MPI.
Winkelmann CJ, William Young, Glazebrook and Williams JJ
[1]
Ellen France J
[197]
WINKELMANN CJ, WILLIAM YOUNG, GLAZEBROOK AND WILLIAMS JJ (Given by Williams J)
Table of Contents
Para No
A INTRODUCTION
[1]
The appeals in brief
[3]
The Berkland appeal
[3]
The Harding appeal
[9]
Issues
[16]
Sentencing purposes, principles and guidelines
[19]
Drug offending
[25]
Misuse of Drugs Act 1975
[25]
Zhang
[28]
B THE RELEVANCE OF OFFENCE CATEGORY TO STARTING POINT IN THE HARDING APPEAL
[42]
Submissions
[42]
Analysis
[44]
C THE EFFECT OF ROLE ON STARTING POINTS IN THE BERKLAND APPEAL
[55]
The Court of Appeal
[57]
Submissions
[59]
Role as an important component in starting points for commercial dealing
[62]
Effect of this part of the judgment
[72]
Application
[73]
Conclusion
[79]
D THE EFFECT OF OFFENDER BACKGROUND IN SENTENCING FOR COMMERCIAL DEALING
[81]
Submissions
[82]
The importance of offender background
[89]
Background and commercial dealing
[95]
What is the required degree of connection between background and the offending?
[97]
Canadian and Australian approaches
[101]
Our view: the causative contribution of background
[107]
The causative contribution of deprivation, historical dispossession and addiction
[113]
Deprivation
[114]
Historical dispossession
[122]
Addiction
[127]
The tools at the Court’s disposal to elucidate relevant background information
[130]
Section 25
[132]
Section 26
[134]
Section 27
[135]
Purposes and principles
[136]
Community
[140]
Form and content
[141]
A caution
[145]
E APPLICATION TO MR BERKLAND’S BACKGROUND
[148]
The Courts below and submissions
[148]
Our view on background
[151]
Rehabilitation and character
[159]
Mr Berkland’s final sentence
[162]
F APPLICATION TO MR HARDING
[164]
The Courts below
[164]
Submissions
[167]
Should the s 27 report be admitted?
[174]
Should Mr Harding’s background factors have affected his sentence?
[176]
Mr Harding’s end sentence
[192]
G RELEVANCE OF BACKGROUND TO MPIs
[193]
H DISPOSITION
[195]
A INTRODUCTION
In
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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AGLC
Berkland v R [2022] NZSC 143
Case
[2022] NZSC 143
Decision Date
CaseChat Overview and Summary
The Supreme Court of New Zealand heard appeals from William Berkland and Brownie Harding, who were convicted of drug-related offences. The Court of Appeal had previously reduced the sentences of both appellants, but the Crown sought leave to appeal against the reduction. The appeals raised issues concerning the relevance of the appellants' roles in their respective drug operations, the importance of background factors in sentencing, and the imposition of minimum periods of imprisonment (MPI). The Court found that the Court of Appeal had erred in several respects. In the Berkland appeal, the Court of Appeal had overstated the significance of Berkland's role in the drug operation, leading to an excessively high starting point for sentencing. The Supreme Court reformulated the criteria for the "significant" role category and reduced Berkland's starting point accordingly. In the Harding appeal, the Court of Appeal had imposed an excessively high starting point for sentencing, failing to properly consider the Zhang guidelines. The Supreme Court reduced Harding's starting point, finding that an uplift for his leading role was justified, but the overall starting point was excessive. Regarding background factors, the Supreme Court held that such factors could mitigate sentence where they had a causative contribution to the offending, but the more serious and carefully orchestrated the offending, the less prominent the effect of background factors would be. The Supreme Court also found that an MPI was not justified in Berkland's case due to the reduction in his sentence and the elapsed time since his original sentencing.