Berkland v R
[2022] NZSC 143
•7 December 2022
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 40/2020 [2022] NZSC 143 |
| BETWEEN | WILLIAM ALLAN BERKLAND |
| AND | THE KING |
| SC 64/2020 | ||
| BETWEEN | BROWNIE JOSEPH HARDING | |
| AND | THE KING | |
| Hearing: | 23 and 24 March 2021 |
Court: | Winkelmann CJ, William Young, Glazebrook, Ellen France and Williams JJ |
Counsel: | L C Ord and E T Blincoe for Appellant SC 40/2020 |
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.
______________________________________________________________________
REASONS
| 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 Zhangv R the Court of Appeal recalibrated New Zealand’s approach to sentencing for methamphetamine‑related offending.[1] It broadened sentencing discretion in two ways relevant to this appeal. First, it removed the purely category‑based distinction in sentencing between manufacture, importation and supply of methamphetamine. Sentencing is to be focused instead on the particular role of the offender in the offending. This was done by introducing new role categories (“leading”, “significant” and “lesser”) to capture the role‑related culpability inherent in the offending. Second, and subject to this Court’s decision in R v Jarden,[2] the Court signalled that personal circumstances may be relevant across the entire spectrum of methamphetamine‑related sentencing.
[1]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[2]R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612.
These two appeals by William Berkland and Brownie Harding raise important issues for the implementation of that new framework and for sentencing more generally.
The appeals in brief
The Berkland appeal
Following the termination of “Operation Walnut” in April 2017, Mr Berkland (a patched member of the Porirua chapter of the Mongrel Mob) pleaded guilty to charges relating to his role in a significant methamphetamine supply operation together with ancillary charges relating to possession of weapons and his own retail supply of other drugs. The methamphetamine supply operation was led by Mr Berkland’s principal, Steven Blance (also a patched member of the Porirua Mongrel Mob). It was established that during the investigation period, they purchased at least 15 kilograms of methamphetamine for on-supply and supplied an estimated average of approximately one kilogram of methamphetamine per week to drug retailers in the Wellington region. Total profit for this slice of the operation was estimated at approximately $1.6 million .
In the High Court, Collins J described Mr Blance as the “mastermind” [3] of the operation and Mr Berkland as his “right‑hand man”.[4] The starting point for Mr Blance was 18 years.[5] The starting point for Mr Berkland was 16 years and six months, to which was added a one year uplift for his ancillary firearms and supply offending. His end sentence of 13 years and three months reflected discounts for an early guilty plea and a six month allowance for personal background factors such as his methamphetamine addiction.[6] A minimum period of imprisonment (MPI) of six years and six months was imposed.
[3]R v Blance [2018] NZHC 1518 at [17].
[4]R v Berkland [2018] NZHC 1520 (Collins J) [Berkland sentencing notes] at [6].
[5]To Mr Blance’s starting point was added a one year uplift for associated firearms and dishonesty charges. His end sentence was 14 years and six months, the reduction reflecting an early guilty plea and a six month reduction for personal factors.
[6]Berkland sentencing notes, above n 4, at [35]–[36].
When it decided Mr Berkland’s appeal against sentence, the Court of Appeal applied the new role categories introduced in Zhang[7] (which was decided after Mr Berkland was sentenced).[8] The Court described Mr Blance’s role in the methamphetamine operation as “leading” and that of Mr Berkland as at the upper end of “significant”. This role combined with the quantity of methamphetamine involved indicated that the High Court’s starting point of 16 and a half years’ imprisonment was within range. Moreover, the Court accepted the limited differentiation between starting points adopted by the sentencing Judge for Messrs Blance (who did not appeal) and Berkland may have been on the low side but said it did not warrant reduction of Mr Berkland’s sentence given the high threshold for disparity arguments and view that Mr Blance’s sentence was low under Zhang.
[7]Zhang, above n 1, at [126].
[8]Berkland v R [2020] NZCA 150 (French, Dobson and Moore JJ) [Berkland CA judgment].
Finally, the Court rejected the argument that a greater discount should have been given for Mr Berkland’s personal factors. They were not an “operative cause” of his offending in light of its scale and commerciality (including retailing multiple drugs), and the fact that his derived income was above subsistence level.[9] Nevertheless, the Court accepted that due to an administrative oversight, certain further background information filed in the High Court by Mr Berkland had not been brought to the attention of the sentencing Judge. This information warranted a further modest discount. The Court of Appeal allowed the appeal in that limited respect only, and reduced the sentence by a further six months to 12 years and nine months on account of the additional factors raised in that material.[10]
[9]At [77].
[10]The MPI of slightly less than 50 per cent was also reduced proportionately.
This Court granted general leave to appeal, but noted the following in our leave judgment:[11]
[1] While the approved question is general, the Court is particularly interested in hearing from the parties in relation to the following issues:
(a)whether, given the more limited role attributed to Mr Berkland by the Court of Appeal (compared to that of his co‑offender), sufficient weight was placed on that factor in setting the starting point;
(b)whether the Court of Appeal applied the correct approach to personal mitigating circumstances in relation to Mr Berkland, and in particular in requiring a causal link between his addiction or history of deprivation and the offending; and
(c)whether the Court of Appeal was correct to uphold the imposition of a minimum period of imprisonment.
[2] It will be clear from the foregoing that it is not intended that this appeal should proceed as a wholesale re-litigation of the Court of Appeal’s guideline judgment in Zhang v R.
[11]Berkland v R [2020] NZSC 125 (footnote omitted).
Mr Berkland broadly advances three arguments. First, he says that for various reasons the Court of Appeal overstated the significance of his role, particularly in light of the differentiation between him and Mr Blance. Properly characterised, he claims he was at the lesser end of significant and a starting point of between 13 and 14 and a half years should have been adopted. Second, he argues the Court of Appeal erred in principle by allowing only token discounts for personal factors due to the commercial scale of the operation and the need to show a causative link between such factors and the offending. Instead, he says a discount should be given where personal factors contribute to the offending. Mr Berkland’s final argument is that in light of his personal circumstances, an MPI could not be justified.
The Harding appeal
Mr Harding pleaded guilty to 11 charges relating to the manufacture and distribution of methamphetamine following the termination of “Operation Easter”.[12] The six separate manufactures in respect of which the police investigation obtained evidence produced at least 6.5 kilograms of the drug assessed at a very high level of purity. The product was transported to Auckland for on‑distribution via Mr Harding’s gang connections.
[12]The 11 charges include six of manufacturing methamphetamine, two of conspiring to supply methamphetamine, possession for supply, supplying pseudoephedrine and participating in an organised criminal group.
Mr Harding was described by Moore J in the High Court as the “undisputed and unchallenged kingpin of this operation which operated on what can fairly be described as a highly organised industrial enterprise”.[13] The Judge first considered the application of s 8(c) of the Sentencing Act 2002 which requires imposing the maximum penalty prescribed for the offence “if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate”. Although satisfied that Mr Harding’s offending was within the most serious of cases of methamphetamine manufacturing, Moore J decided “by a fine margin” that the guilty pleas and lack of previous drug-related offending made a sentence of life imprisonment inappropriate.[14] Instead, a starting point of 30 years’ imprisonment was adopted with a discount for late guilty pleas of 18 months, leaving a final sentence of 28 and a half years’ imprisonment.[15] The maximum MPI of 10 years was imposed as the Judge was satisfied a higher MPI would have been justified but for the 10 year maximum provided in s 84(4).
[13]R v Harding [2017] NZHC 675 (Moore J) [Harding sentencing notes] at [38].
[14]At [6] and [75].
[15]This 30 year starting point comprised 25 years for the manufacturing charges with an uplift of 5 years for the supply‑related charges.
At the time Mr Harding was sentenced, the relevant sentencing guidelines were those provided in R vFatu.[16] It was not suggested that, under those guidelines, the starting point adopted was unavailable. Mr Harding, however, was entitled to have the appropriateness of his sentence reviewed in light of Zhang. He pursued an appeal on that basis.
[16]R v Fatu [2006] 2 NZLR 72 (CA).
The Court of Appeal upheld this sentence on appeal. The Court described the operation as “the most substantial methamphetamine manufacturing and distribution network ever prosecuted in New Zealand”,[17] and placed Mr Harding at the “apex” of it.[18] Zhang, the Court found, did not suggest that leaders in commercial drug dealing should receive more lenient sentences than they would have under Fatu.[19] The Court also agreed with Moore J that there should be no discount for personal circumstances as there was not “the necessary link between any mental health issues, or Mr Harding’s abuse of alcohol and gambling, and the offending”.[20]
[17]Harding v R [2020] NZCA 217 (Goddard, Ellis and Brewer JJ) [Harding CA judgment] at [1].
[18]At [42].
[19]At [54].
[20]At [57].
It should, however, be noted that the Court of Appeal did express concern that a sentence of 30 years may not materially contribute any more to the Sentencing Act’s goals of accountability, denunciation or deterrence than would a sentence of (say) 20 years. If that were the case, such a lengthy sentence might only be justifiable as a means of providing community protection through incapacitation.[21] Further, Goddard J considered that a sentence of 28 and a half years raised a question about proportionality given the lower average life expectancy of Māori men in their early 40s.[22] It might be said that such sentences could be tantamount to a life sentence. However, since neither argument was raised by the appellant, the Court of Appeal did not address these matters further.
[21]At [60].
[22]At [61].
Mr Harding applied for leave to appeal to this Court against both conviction and sentence. We declined leave to appeal against conviction but granted the appeal against sentence.[23] The approved question was whether the Court of Appeal was correct to dismiss the appeal against sentence.
[23]Harding v R [2020] NZSC 127.
Mr Harding argues the sentence is excessive when compared to sentences for importation of similar quantities, and in light of personal background and cultural factors which, it was argued, the Court of Appeal failed to take into account.
Issues
Taken together, resolution of these appeals requires us to consider six broad issues: some are appeal specific, others are relevant to both appeals. We set those out here and summarise our conclusions:
(a)Was Mr Harding’s conduct in manufacturing methamphetamine more culpable than that which might be ordinarily associated with importation or supply of the same quantity, and if so, how should that increased culpability be assessed?
We conclude that, irrespective of the offence category, culpability must be assessed on the facts of the particular case, commencing with drug quantum and the offender’s role in the offending. We address separately below, the relevance to culpability of offender background. In Mr Harding’s case, although the complexity (by which we mean the planning, premeditation and human scale) of his manufacturing operation was greater than that which might be expected in importation or supply of the same quantity, the uplift upheld in the Court of Appeal reflected an incorrect assessment of his culpability. It was, as a result, too great.
We consider an overall starting point of 22 years for all offending is appropriate.
(b)In the Berkland appeal, did the relevant role criteria, as stipulated in Zhang and applied by the Court of Appeal, ensure that all facts relevant to culpability were appropriately considered?
The role description in Zhang warrants reformulation to make it clear that an offender such as Mr Berkland who did not have significant autonomy, decision‑making authority or management of others should not be placed at the upper end of the significant role. His starting point must be reduced accordingly.
We consider an overall starting point of 14 and a half years for all offending is appropriate.
(c)In both appeals, how important should background factors have been; and what degree of connection must be established between background and the offending?
The Sentencing Act’s purposes and principles mandate individualised justice, making the offender’s background an important element in all sentencing alongside consideration of the harm caused to victims and the community. We conclude that background factors such as addiction, deprivation and historic dispossession can mitigate sentence where those factors have contributed causatively; that is, if they help to explain in some rational way why the offender has come to offend. This standard is not unduly rigorous. That said, there will be cases in which the causative nexus is more direct. In other words, if it can be established that a background factor was the operative or proximate cause of the offending then the potency of that connection will be greater. But there may be other considerations that limit the effect of background. In particular, the more serious and carefully orchestrated the offending, the more the courts are likely to emphasise the choice made by the offender to offend. The causative contribution of background factors will be reduced and other sentencing purposes will be more prominent, particularly protecting the community from the harm associated with drug dealing.
Further, we emphasise that ss 25–27 of the Sentencing Act are key infrastructure to assist the court in elucidating relevant aspects of offender background. We provide further guidance as to the implementation of s 27.
(d)How do we apply our conclusions in relation to the place of background factors to these appeals?
(i)In relation to Mr Berkland, we consider that the available information established that various background factors contributed causatively to his offending and should have materially affected his sentence in accordance with the relevant purposes and principles of sentencing.
We consider discounts of 10 per cent for background and addiction and 10 per cent for rehabilitation are appropriate.
(ii)In relation to Mr Harding, we do not consider the background information to be as compelling either on its own terms or when placed alongside the seriousness of his offending. We do not discount the possible causative contribution of Mr Harding’s background factors, particularly poor educational outcomes. But when these factors are seen in the context of his leadership of serious and carefully orchestrated offending and his lengthy history of different but still serious offending, it would not be appropriate to treat that background as justifying a discount.
(e)In the Berkland appeal, should his background have played any part in the decision to impose an MPI?
In light of the reduction in Mr Berkland’s sentence and the fact that an MPI of 50 per cent of that sentence would have elapsed at the end of 2021 or early this year, imposing an MPI now would serve no relevant purpose. In those circumstances we do not impose an MPI in Mr Berkland’s case. For completeness we note that Mr Harding’s MPI remains at the 10 year maximum. Since his final sentence is still more than 20 years, an MPI of 50 per cent would exceed that term. His counsel did not suggest an MPI of less than 50 per cent could be justified.
We conclude therefore that the sentences in each appeal were in error in different respects and would allow the appeals accordingly.
Before turning to discuss our reasons, it is necessary to briefly sketch out the relevant aspects of the sentencing framework generally and drug offending in particular, including the Court of Appeal’s guideline judgment in Zhang.
Sentencing purposes, principles and guidelines
Section 7 of the Sentencing Act contains a closed list of permissible sentencing purposes. The Act itself does not dictate any particular priority.[24] Nor is the sentencing judge directed to pursue all of them. In fact, as every sentencing judge knows, these purposes can pull in different directions.
[24]Sentencing Act 2002, s 7(2).
Section 8 then provides a list of mandatory relevant principles of sentencing for the court, including specific directives in relation to the application of maximum penalties and, conversely, to impose the “least restrictive” outcome. To this is added the inclusive list of aggravating and mitigating factors contained in s 9. They too are mandatory considerations if relevant to the case.
These principles and factors in ss 8 and 9 can also pull in different directions. Again, the Act itself does not prioritise them or attribute to them any particular weight. Rather, their applicability, priority and weight will be a matter for the sentencing judge to evaluate based on a broad assessment of the seriousness of the harm, the culpability of the offender, the interests of the victim and the offender’s personal circumstances or background.[25]
[25]Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [4].
As this Court said in Hessell v R, ss 7, 8 and 9 reflect the complexity of the sentencing task and the infinite variety of factual circumstances that must be considered and weighed.[26] This is an intensely individualised factual evaluation.[27] That does not mean consistency in sentencing is de-powered; rather as Hessell notes, it reflects that “Parliament was certainly concerned over the need for consistency in sentences, but was equally concerned that the sentence be appropriate in the particular case”.[28] Consistency and a full evaluation of the circumstances must sit together “to achieve justice in the individual case”.[29] Section 8(e) makes that point in the following careful terms:
In sentencing ... the court ... must take into account the general desirability of consistency with appropriate sentencing levels ... in respect of similar offenders committing similar offences in similar circumstances ...
[26]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [42].
[27]At [38]. This point was also recently affirmed in Zhang, above n 1, at [120].
[28]At [38].
[29]At [38]
Purposes, principles and factors are prescribed but sentencing methodology has been left to the judges.[30] In drug offending, as in all other offending, the courts adopt the well-known two-stage methodology, first introduced by the Court of Appeal in R v Taueki.[31] The sentencing judge must first set a starting point by reference to the facts of the offending and the offender’s role in it, and then secondly consider the wider circumstances of the offender in order to determine whether the starting point should be adjusted. As recently settled in Moses v R, account is taken of any guilty plea at that second stage.[32]
[30]Moses, above n 25, at [4].
[31]R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
[32]Moses, above n 25, changing the approach from that set out in Hessell, above n 26, where the guilty pleas were taken into account at a third stage.
We agree with the observation in Moses that “[g]uideline judgments build on the Act, seeking to further its purposes by promoting transparency of analysis, which facilitates comparison and appellate review, and principled consistency of outcome”.[33] Where there is a guideline judgment it should be applied by the sentencing judge. But as reiterated by this Court in Hessell, guideline judgments are just that.[34] They assist sentencing judges in the difficult evaluative task they perform. They look over the sentencing judge’s shoulder to ensure there is a “proper judicial evaluation of individual cases”.[35] Guideline judgments do not replace sentencing discretion with a “mechanistic” box-ticking exercise.[36]
Drug offending
Misuse of Drugs Act 1975
[33]Moses, above n 25, at [4].
[34]Hessell, above n 26, at [41]–[43]. See also Zhang, above n 1, at [120].
[35]Hessell, above n 26, at [41].
[36]Zhang, above n 1, at [48].
The Misuse of Drugs Act 1975 (MODA) controls the importation, manufacture, supply and sale of controlled drugs.[37] Methamphetamine is a Class A controlled drug because, in terms of s 3A(a), its misuse poses “a very high risk of harm” to “individuals, or to society”.[38]
[37]Misuse of Drugs Act 1975 [MODA], s 6(1).
[38]MODA, sch 1.
Parliament’s concern about methamphetamine’s potential for harm drives the criminalisation of unauthorised “dealing” in it.[39] Dealing includes importation, manufacture and supply.[40] The maximum sentence for methamphetamine dealing is life imprisonment.[41] Imprisonment will be the presumptive sentence for methamphetamine dealing unless there are circumstances of the offence or offender justifying a different result.[42] Although the Act contains a rebuttable presumption that possession of at least 5 grams of methamphetamine will constitute possession for supply,[43] the dealing offences do not prescribe a minimum quantity.[44] In other words, dealing in methamphetamine in any amount will trigger a presumed custodial response, while exposing the offender, at least in theory, to life imprisonment.
[39]Section 6.
[40]Section 6(1)(a)–(c).
[41]Section 6(2)(a).
[42]Section 6(4).
[43]Schedule 5.
[44]Section 6(1).
For sentencing judges this means two things: first, the range of available sentences, including the range of custodial sentences, is extremely wide; and second, this makes the evaluative task both more important and more difficult. Guideline judgments obviously play an important role in ameliorating that burden. But as noted above, guideline judgments must not be applied in a mechanistic manner. There must be proper judicial evaluation of the individual case.[45]
Zhang
[45]Hessell, above n 26, at [41]–[43].
In 2019, following a comprehensive inquiry, the Court of Appeal issued new methamphetamine sentencing guidelines in R v Zhang.[46] These guidelines replaced those issued by the Court of Appeal 14 years earlier in R v Fatu.[47] The Court in Zhang made various adjustments to the methamphetamine sentencing practice that had developed under Fatu, in light of current evidence of changing trends in methamphetamine dealing and consumption in New Zealand.
[46]Zhang, above n 1. The Court selected six appeals for hearing, which between them were considered to raise a spectrum of issues the Court felt needed to be addressed. Submissions were sought from the Criminal Bar Association of New Zealand, the New Zealand Law Society | Te Kāhui Ture o Aotearoa, the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture, the Auckland District Law Society, the Public Defence Service | Ratonga Wawao ā-Ture Tūmatanui, the Human Rights Commission | Te Kāhui Tika Tangata, the New Zealand Police | Ngā Pirihimana o Aotearoa, the New Zealand Drug Foundation | Te Tūāpapa Tarukino o Aotearoa, Te Ohu Rata o Aotearoa | Māori Medical Practitioners Association and Te Hunga Rōia Māori o Aotearoa | Māori Law Society. All those invited filed submissions and other material. Only the New Zealand Drug Foundation, Te Ohu Rata and the New Zealand Police chose not to make separate oral submissions. Extensive evidence of a systemic nature was also filed by the interveners.
[47]Fatu, above n 16.
The changes in the New Zealand methamphetamine trade were significant. There had been a massive increase in aggregate quantities seized: from a total of 13 kilograms in 2012 to 923 kilograms by 2016.[48] Methamphetamine‑related convictions had almost doubled between 2009 and 2018 while, by contrast, drug convictions overall had halved over the same period.[49] Part of that trend may be attributable to a shift in policing policy (particularly with regard to Class C drug offending and mere possession generally), but the Court was in little doubt that methamphetamine use in the country had increased markedly since Fatu despite the prevalent emphasis on deterrence above other more individualised sentencing purposes.
[48]Zhang, above n 1, at [81].
[49]At [84].
“After extensive consideration and debate upon the matter,”[50] the Court decided to retain the Fatu quantum-based framework as a “reasonable proxy both for the social harm done by the drug and the illicit gains made from making, importing and selling it”.[51] But in an acknowledgement of the larger quantities now entering the market almost entirely through importation, the Court decided to split band four of Fatu in two: band four would cover quantum between 500 grams and two kilograms; and a new band five would relate to any quantum above two kilograms. The following comparative table demonstrates the change:
[50]At [118].
[51]At [103].
| Former: Fatu | New: Zhang | |
| Band one: < 5 grams | 2–4.5 years | Community to 4 years |
| Band two: < 250 grams | 3–11 years | 2–9 years |
| Band three: < 500 grams | 8–15 years | 6–12 years |
Band four: | > 500 grams 10 years to life | < 2 kilograms 8–16 years |
(New) Band five: | N/A | > 2 kilograms 10 years to life |
As can be seen the new guideline produced material reductions in starting point ranges in bands one to three. Overall the Court signalled a desire to step back from the relative rigidity of the Fatu framework.
First, the bands would no longer differentiate, as Fatu had, between supply, importation and manufacturing.[52] The Court reasoned that since the maximum penalty for each offence and the harm caused is identical, each offence category should also be treated as equally serious in principle. Further, the emphasis in Fatu on safety issues were seen as less pressing for two reasons: importation is now the predominant means by which the drug entered the New Zealand market, and contamination issues related to manufacturing had been found to be somewhat overstated.[53]
[52]The Court in Fatu considered that manufacture, importation and supply were not equally culpable: manufacturers were likely to be more culpable than importers and importers more culpable than suppliers. An additional 10 to 20 per cent loading was imposed for importation (as compared to supply); and 10 to 20 per cent again for manufacturing (as compared to importation) as explained in Zhang, above n 1, at [26]. The sentencing bands for Fatu in the above table incorporate the full range of possible starting points for all three offences in each band.
[53]Zhang, above n 1, at [30].
Second, sentencing judges were encouraged to consider “more flexible sentencing solutions”, particularly in band one offending.[54] The Court signalled that non quantum‑based individual culpability factors such as role and personal background could well justify community‑based sentences.[55]
[54]At [123].
[55]At [123].
Third, in fixing culpability Zhang placed a great deal more emphasis on the role of the offender in the offending.[56] It was, the Court noted, “an important consideration” alongside quantum in assessing overall culpability.[57] A formalised approach to role was therefore required. Following the lead of the United Kingdom Sentencing Council,[58] the Court subdivided each of the five bands into role‑based categories: “lesser” belonging to the bottom of the band, “significant” in the mid-range and “leading” at the upper end.[59] The Court also entertained the possibility that role could take a starting point outside the band dictated by quantum alone. The Court set out the relevant role indicia in these terms:[60]
[56]The Court in Zhang made the point that in Fatu role was primarily relevant to placement within a band rather than to movement between bands or to take a person out of a band: see Zhang, above n 1, at [26] and [118], and contrast with Fatu, above n 47, at [31], [32] and [36].
[57]Zhang, above n 1, at [118].
[58]Sentencing Council Drug Offences: Definitive Guideline (2012). Note that these guidelines have since been updated in April 2021: Sentencing Council “Sentencing Guidelines for use in Crown Court” <
[59]Zhang, above n 1, at [126].
[60]At [126].
| Role | ||
| Lesser | Significant | Leading |
| 1. Performs a limited function under direction; 2. engaged by pressure, coercion, intimidation; 3. involvement through naivety or exploitation; 4. motivated solely or primarily by own addiction; 5. little or no actual or expected financial gain; 6. paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved; 7. no influence on those above in a chain; 8. little, if any, awareness or understanding of the scale of operation; and/or 9. if own operation, solely or primarily for own or joint use on non‑commercial basis. | 1. Operational or management function in own operation or within a chain; 2. involves and/or directs others in the operation whether by pressure, influence, intimidation or reward; 3. motivated solely or primarily by financial or other advantage, whether or not operating alone; 4. actual or expected commercial profit; and/or 5. some awareness and understanding of scale of operation. | 1. Directing or organising buying and selling on a commercial scale; 2. substantial links to, and influence on, others in a chain; 3. close links to original source; 4. expectation of substantial financial gain; 5. uses business as cover; and/or 6. abuses a position of trust or responsibility. |
At stage two of the Moses sentencing process, the Court stepped back from the prevailing orthodoxy which held that personal background should count for little in commercial scale drug offending. Personal factors may, the Court considered:[61]
(a)impair an offender’s rational choice to offend;
(b)reduce the efficacy of either general or specific deterrence; and/or
(c)render a sentence of imprisonment more severe than would be the case for other offenders.
[61]At [138].
Three particular personal factors discussed by the Court in Zhang bear mentioning because they are relevant to the issues in this appeal. First, the Court held that addiction will be a mitigating factor where it is “causative of the offending” but would otherwise be “of little mitigatory relevance”.[62] Further, the Court suggested that “commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice,” but that possibility could not be entirely excluded.[63] Discounts of up to 30 per cent were contemplated for addiction‑related factors.[64]
[62]At [147].
[63]At [147].
[64]At [149].
Second, mental health issues also justified discounts where causative in accordance with settled authority.[65] The Court acknowledged that very often mental health issues will go hand in hand with addiction.
[65]At [152]–[153]. See also E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411; and Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629.
Third, the Court acknowledged that social, cultural and economic deprivation, whether in terms of the continuing effects of the historical displacement of Māori, or where found in the particular background of offenders more generally, will be relevant where it “contribute[s] causatively to offending”.[66]
[66]Zhang, above n 1, at [159] and [162].
The Court then briefly addressed the question of MPIs. The Court emphasised that MPIs must not be imposed mechanistically. Nor should their term be approached in that way.[67] The s 86 discretion “must not be fettered” by presumptions or rules of thumb.[68] But, the Court held, deterrence, denunciation and accountability must remain the dominant purposes engaged in accordance with s 86 and so lengthy MPIs should be reserved for cases involving significant commercial dealing.[69]
[67]At [169] and [172].
[68]At [174] .
[69]At [171].
The Court summed up the effect of its judgment in this way:[70]
Those who willingly participate in commercial‑level dealing in methamphetamine will gain little succour from this judgment. Its benefits lie more for those who take a lesser role in methamphetamine offending, and particularly those who do so as a result of vulnerability.
[70]At [11].
With respect for that Court’s supervisory role over first instance sentencing practice, we are broadly in agreement with Zhang’s recalibration of methamphetamine sentencing. We return to some of the detail of the findings in Zhang where relevant to the issues raised in this appeal. As will be seen, we consider there is a need for further clarification in some areas. These include: offender role; the required nexus between personal background factors and offending; and the tools for obtaining and evaluating background information.
B THE RELEVANCE OF OFFENCE CATEGORY TO STARTING POINT IN THE HARDING APPEAL
Submissions
Mr Harding argued that his overall starting point of 30 years (25 years for manufacturing and a five year uplift for supply) was too high. He emphasised that the Court in Zhang relied on quantum as the first component in any sentence, removing the offence‑based differences that had applied since Fatu. Ms Park essentially argued that even if Mr Harding’s role was at the upper end of leading (a point she challenged) the Court adopted a starting point far in excess of those for similar quantities in importation and supply cases. This was therefore inconsistent with Zhang.
The Crown acknowledged that Zhang had removed sentence differentials based only on the offence category but submitted that differences between offence category could still be a relevant factor in determining the starting point. Mr Barr submitted that the quantity involved in Mr Harding’s case was still well above the band five floor. He argued that manufacturing on this scale was more complicated and labour intensive, and it required more planning than did importation. Mr Harding was the “kingpin” and “mastermind” of a complex industrial scale operation. It was submitted therefore that that part of Mr Harding’s culpability not captured in quantum alone was more than made up for in the high level of responsibility he carried and the fact that the enterprise involved both manufacture and supply.
Analysis
As noted, Mr Harding’s manufacturing operation was the largest ever detected in New Zealand at that time. When he was sentenced, manufacturing methamphetamine was treated separately under the Fatu guidelines. It was considered to be more culpable than both importing and supplying. So under Fatu producing 6.5 kilograms of methamphetamine was therefore “within the most serious of cases” of manufacturing methamphetamine.[71] Moore J’s conclusion that s 8(c) of the Sentencing Act was engaged was therefore correct on the authorities as they stood at the time.
[71]Harding sentencing notes, above n 13, at [65].
But the sentence imposed must be reconsidered in light of Zhang under which manufacturing, importing and supplying are no longer differentiated in principle. Rather, according to Zhang, starting point composition begins with quantum (since the MODA offences respond to the social harm of drug dealing) followed by a consideration of the offender’s role in that offending. Any variation between manufacturing, importation and supply will reflect variations in role and associated culpability, not the offence category.
Properly construed, s 8(c) is consistent with that approach. In the context of commercial drug “dealing” s 8(c) can most sensibly be read as applying to the “dealing” offences under s 6 of the MODA as a single category. This brings starting points for importation and supply into the s 8(c) assessment in manufacturing cases.
Since importation and supply cases involving larger quantities of methamphetamine have not led to the imposition of life sentences, s 8(c) (and s 8(d) for that matter) are not likely to be engaged by offending that involved the manufacture of 6.5 kilograms of methamphetamine.
Supply cases with offenders leading sophisticated networks distributing similar quantities to that in Mr Harding’s case have tended to attract starting points of 18 years.[72] Leaders in importation offending cases involving similar quantities have also attracted starting points around the 18 year mark. R v Martel is a pre-Zhang example,[73] while post Zhang, a “moderately leading” importer of 20 kilograms of methamphetamine in multiple importation events had a 19 year starting point reduced to 17 years on appeal.[74] So, if s 8(c) was not engaged, Mr Harding’s starting point of 25 years for manufacturing 6.5 kilograms was very high.
[72]R v Thompson [2018] NZDC 11394, with the starting point being considered “within range” in Zhang, above n 1, at [272]; and R v Campbell [2019] NZDC 26383, with this starting point not challenged on appeal: Campbell v R [2020] NZCA 631 [Campbell CA] at [10].
[73]R v Martel [2017] NZHC 1878 where the starting point for methamphetamine charges for Mr Martel was 18 years, with an uplift of two years for other drug charges. The sentence, and in particular the starting point, was upheld in the Court of Appeal: Martel v R [2018] NZCA 305 at [10].
[74]Fangupo v R [2020] NZCA 484 at [42] and [50]. The Court of Appeal overturned the19 year starting point in R v Fangupo [2019] NZHC 2896.
In assessing Mr Harding’s comparative culpability, we acknowledge that he led a very large manufacturing operation by New Zealand standards.[75] His offending involved a high level of planning and premeditation.[76] He employed 11 others who worked as principal cooks, assistant to the cooks, packers, couriers, equipment suppliers and general drivers and gofers operating in shifts. And he was a hands on boss. He controlled every aspect of the operation. Clearly then, these facts justify an uplift on the (generally) 18 year starting points adopted in the supply and importation cases to which we have referred. This is not because of the particular offence category in Mr Harding’s case, but because the facts disclose a higher level of planning and premeditation than the facts in those importation and distribution cases. But a seven year uplift is excessive.
[75]It was argued by Mr Harding that this was not supported by the evidence. But we reject that submission; it is plain that he was the leader of the operation.
[76]Sentencing Act, s 9(1)(i). See also R v Mako [2000] 2 NZLR 170 (CA) at [36] which notes that “[t]he degree of planning and preparation will reflect criminality”.
We would for example contrast his starting point with that of Mr Yip whose appeal was dealt with in Zhang.[77]He played a leading role in the importation of around 60 kilograms of methamphetamine. A starting point of 25 years was reduced on appeal to 23 years because, although he was a leader, he did not appear to have significant decision-making power and his reward was modest in terms of the significance of his role.[78]
[77]Zhang, above n 1, at [282]–[310].
[78]At [299]–[300].
The Courts below do not seem to have grappled with the actual quantity involved in this offending. Six and a half kilograms is not an exceptionally large quantity when compared to trends in importation quantity. It must be remembered that the driver of the MODA offence provisions is the risk of harm to drug users, their families and communities. That is why quantum comparisons are the point of entry for the Moses stage one assessment.
A starting point of 21 years for the manufacturing charges sufficiently recognises the greater culpability of Mr Harding’s leadership of the operation.
As the sentencing Judge acknowledged, Mr Harding’s supply‑related offending was closely connected to the manufacturing operation, and in truth it reflected Mr Harding’s controlling role in the overall enterprise.[79] An uplift for the supply‑related charges is plainly justified for this but there must be no double counting. In our view an uplift of one year to an overall starting point of 22 years is appropriate. It is on any view a very stern starting point. We acknowledge, in that respect, the question posed by the Court below in relation to the marginal deterrent effect of very long finite sentences.[80] Like that Court, we are doubtful that a 30 year sentence serves the sentencing goals of accountability, denunciation and deterrence any better than a sentence of 22 years.
[79]Harding sentencing notes, above n 13, at [28].
[80]Harding CA judgment, above n 17, at [60].
We will address factors in relation to Mr Harding’s personal background later in this judgment.
C THE EFFECT OF ROLE ON STARTING POINTS IN THE BERKLAND APPEAL
Zhang “reinforc[ed] and enhanc[ed]” the place of role in the culpability assessment.[81] It provided much needed guidance on the potential impact on culpability of different role profiles. But a particular focus of the Court in Zhang was on encouraging a less constrained approach to sentencing for “lesser” roles.
[81]Zhang, above n 1, at [127].
In Mr Berkland’s appeal the focus is on the “significant” category. He submits there should be greater differentiation between significant and leading roles than the Court of Appeal had allowed for in his case. That issue will always be intertwined with factual assessments in the particular case. It is no surprise therefore that in this appeal Mr Berkland also mounted an attack on the role‑related findings of fact in the Courts below. We address both the factual and the in-principle issues arising under this heading.
The Court of Appeal
It will be recalled that the sentencing Judge set Mr Blance’s starting point at 18 years and Mr Berkland’s at 16 and half years, before uplifting both starting points to reflect additional offending. In setting the starting point, the Court of Appeal considered the following circumstances meant that Mr Berkland’s role could be considered “towards the upper end of significant”:
[51] He performed operations and management functions. He was responsible for the counting, safe keeping and concealment of the money. He was the go‑to person after Mr Blance. He was the person who came with the money to purchase the major supplies and by his own admission had conducted major deals on his own. Contrary to a submission made by Ms Ord, we do not dismiss that admission as puffery and idle boasting. The trust Mr Blance placed in Mr Berkland was such that it is perfectly conceivable Mr Blance would have been willing to sanction Mr Berkland doing that. That is not to say, that either man would have regarded the money as solely belonging to Mr Berkland.
[52] Mr Berkland also seems to have been the main custodian of what can fairly be described as an arsenal of firearms. It is noteworthy too that he had over half a million dollars’ worth of methamphetamine in his van.
[53] Mr Berkland was motivated primarily by financial advantage. He expected to profit and did profit. Whether there was or was not a nest egg does not matter for present purposes. What matters is that Mr Berkland genuinely thought there was. …
[54] In any event, in addition to the promised reward of a $100,000 nest egg, there were weekly payments by way of methamphetamine (worth over $4,000 to Mr Berkland) and cash of between $1,000 to $2,000.
[55] Mr Berkland was conversant with the detail of the operation and its scale. The intercepted communications between him and Mr Blance as well as his statements to the undercover police show an intimate knowledge. He talked to the officers about such matters as the operation’s preference for purchasing rock methamphetamine, its sales tactics, and money laundering ideas. He conferred with Mr Blance about deals and stocks. He knew Mr Blance’s availability, the state of the stocks, and when ‘reloading’ was going to happen. Mr Berkland may not have been a frequent visitor to Coates Street but the two men must have been in frequent communication.
The Court of Appeal considered these facts satisfied four of the five relevant Zhang “significant” indicators and therefore located Mr Berkland’s role at the upper end of significant:[82] he had operational and management functions; he was motivated primarily by financial advantage; he received or expected profit; and he had some awareness of the scale of the overall operation. The starting point of 16 and a half years before an uplift for additional charges was therefore justified. Further, even if the differential between Messrs Berkland and Blance should have been greater, Mr Blance’s starting point was probably too low on a Zhang analysis. It could not therefore be established that the sentence, on its own terms, was excessive. In any event, the Court took the view that the 18 month difference was not so insignificant a reasonable minded observer would conclude something had gone wrong with the administration of justice.[83]
Submissions
[82]At [56].
[83]At [67]. This was, the Court noted, the longstanding test for whether disparity between sentences for co-offenders had caused justice to miscarry for one or another of them.
Mr Berkland argued that the Court of Appeal had overstated his role in Mr Blance’s operation. Partly this was because the sentencing Judge had erroneously expanded Mr Berkland’s role. The sentencing Judge said that Mr Berkland “ran the supply network and [was] in charge of counting and concealing large amounts of cash earned from the methamphetamine sales”,[84] when the Summary of Facts actually recorded that Mr Berkland would “run the supply network from the Coates Street address in Blance’s absence”.[85] Further the Judge considered there were more than 100 supplies “by [Mr Berkland] in [his] capacity as part of the organisation”.[86] In fact the Summary of Facts recorded that Mr Blance was involved in over 100 separate supplies. Further, the sentencing Judge considered Mr Berkland was “personally said to have supplied undercover officers on 11 occasions”.[87] In fact, the Summary of Facts recorded that Mr Berkland had interacted with and sold methamphetamine to undercover officers on 11 separate occasions. Only three of the 11 occasions involved actual supply.
[84]Berkland sentencing notes, above n 4, at [6].
[85]Emphasis added.
[86]Berkland sentencing notes, above n 4, at [17(2)].
[87]At [17(2)].
Mr Berkland argued that the Court of Appeal, having been appraised of these errors, then ignored them, treating them as immaterial to the final sentence. They were, it was submitted, plainly material. Mr Berkland argued that his role was properly located at the lower end of significant rather than the upper end,[88] and that a starting point of between 13 and 14 and a half years’ imprisonment was appropriate.
[88]Mr Berkland submits that he met four of the indicia of the lesser role. In terms of the significant role indicia, he accepts he had an operational function but not a management one; he was motivated partly but not solely or primarily by financial advantage; there was a degree of actual or expected commercial profit; and he was aware of the scale of the operation.
For the Crown, Mr Barr argued that whatever factual errors were made at sentencing, Mr Berkland had accepted the Court of Appeal’s summation of the facts. As that Court found, those facts still placed Mr Berkland’s role at the upper end of significant. In response to Mr Berkland’s argument that there ought to have been greater differentiation between his and Mr Blance’s starting points, the Crown made three points. First, the Court of Appeal in Zhang had intentionally rejected the United Kingdom Sentencing Council’s more prescriptive approach to role differentiation in favour of a more “open textured” approach in the New Zealand context. Secondly, direct comparisons are inappropriate where Mr Berkland’s combined starting point of 17 and a half years appears to have reflected a wider range of drug offending than Mr Blance’s overall starting point. For instance, Mr Berkland’s offending included his own retail supply business, not all of which was methamphetamine‑based. Thirdly, and in any event, the Court of Appeal’s observations that Mr Blance’s starting point was too low on a Zhang analysis was justified in light of the massive scale of the operation.
Role as an important component in starting points for commercial dealing
This aspect of the appeal addresses the difficult issue of the place of role in determining appropriate starting points in commercial drug offending.
In any offending, the role of the offender (what they actually did) is a fundamental component of the gravity and culpability assessment.[89] Neither the MODA nor the Sentencing Act suggest drug offending should be treated differently. As we have said, sentencing is an intensely factual inquiry and relevant facts must be proved or disproved to the standards set out in s 24 of the Sentencing Act. Though difficult, the exercise cannot be avoided, as the Court in Zhang emphasised.[90]
[89]Sentencing Act, s 8(a). As the Court of Appeal noted in Zhang, above n 1 at [110]: “It is patent that role has a fundamental impact on culpability”.
[90]Zhang, above n 1, at [127]
This means the potency of role will vary. It can, as Zhang clarified, drive movements both within and between the quantum driven bands. In other words, there is no reason in principle why role cannot be even more impactful than quantum, if justified in the circumstances. This may well be the case, for example, if the circumstances demonstrate that, irrespective of quantum, the offender’s role in relation to it falls within the lower end of “lesser”.[91] All will depend on the facts and the sentencing judge’s evaluation of them. Once again, the purpose of Zhang is to assist that evaluation, not displace it.
[91]This too was accepted in Zhang, above n 1, albeit in exceptional circumstances: at [123].
Zhang’s three role categories provide a useful lens through which to view the facts, but, as that Court cautioned, they are a tool to aid evaluation, not a straitjacket.[92] All facts going to role will be relevant, not just the ones approximating the hypothetical facts in one or other of the categories. And they are not three siloes. Category borders are likely to be porous. Nonetheless, it is useful to consider the core characteristics of, and differences between, the leading and significant roles, even if in reality they form a single continuum. This is at the heart of this aspect of the appeal. Having considered these characteristics, we have come to the view that the “significant” role classification criteria in Zhang warrants some reformulation in two matters of detail.
[92]At [120].
Leaders are described in the Zhang role profile as directing or organising buying and selling on a commercial scale. We accept this description as one that applies generally. The essential characteristic of leaders is that they lead. They are the initiators, designers, controllers and (usually the) profit-takers at each of the several stages in the commercial dealing chain from manufacture or importation to supply. They expect and obtain substantial financial gain.
By contrast, the essential characteristic of significant players is that they are important enablers in the chain who take their orders from leaders. They are described in Zhang as performing an “operational or management” function. This is the first aspect of the significant role profile in Zhang we see as warranting some reformulation. The disjunction “or” may be taken to imply that these functions are interchangeable in culpability terms but that is not necessarily so. Managers (under the direction of leaders) are likely to be more culpable than those whose tasks are merely operational.
Those at the upper end of the significant range can be expected to manage aspects of the overall operation with at least some knowledge of how the pieces fit together. They will direct and engage others in the course of managing a significant aspect of the operation. Purely operational functions will not usually place the offender at the upper end of significant unless they exercise a high degree of autonomy in the performance of functions that are significant to the operation or there is some distinctive element of the operational role justifying its placement at the upper end. In either capacity, those at the upper end will take payments, often comparatively large payments, from the leaders in return.
Those falling within the middle and lower end of the significant range are unlikely to be exercising managerial functions or have real autonomy in the performance of their functions.
The second issue is with item four on the criteria that references “actual or expected commercial profit”. It is of uncertain application. As we have noted, profit‑taking is a strong indication that the taker is in a leadership role.[93] Significant players, on the other hand, are typically paid. For the significant role profile it is financial gain rather than commercial profit which is a more appropriate descriptor. Adjusting the profile accordingly also brings more coherence with the equivalent items under the lesser and leading roles. Those at the upper end of significant can be expected to have been paid in a way which is broadly commensurate with the risks that are run and the overall profitability of the operation. By contrast, a person in the middle to lower range is typically required to carry a greater share of the risks than the reward justifies.
[93]We of course do not discount the possibility that significant players may take a profit share, but in our view this is unlikely.
We consider it appropriate to adjust the significant role profile to address these issues:
| Changes to significant role profile from Zhang | |
| Zhang’s significant role profile | Updated significant role profile |
| 1. Operational or management function in own operation or within a chain; 2. involves and/or directs others in the operation whether by pressure, influence, intimidation or reward; 3. motivated solely or primarily by financial or other advantage, whether or not operating alone; 4. actual or expected commercial profit; and/or 5. some awareness and understanding of scale of operation. | 1. Management function in operation or chain where, under direction from a leader, this entails directing others in the operation whether by pressure, influence, intimidation or reward; 2. operational function whether operating alone or with others; 3. motivated solely or primarily by financial or other advantage; 4. actual or expected financial or other advantage, especially where commensurate with role and risk assumed; and/or 5. some awareness and understanding of the scale of the operation. |
The Court in Carr also acknowledged that “the gravity of the offending might temper the extent of any discount” but that did not mean necessarily that there should not be any allowance.[201] In terms of drug offending, there must be some recognition that in relation to various serious commercial offending it is going to be more difficult to see the requisite link. It follows that I consider it is unfair to describe the Court’s approach in Zhang in the way Williams J does particularly where that Court would have considered it was constrained by Jarden.[202]
[201]Carr, above n 187, at [65].
[202]See Williams J above at [128].
I add that as I have noted, in Jarden the Court made some allowance for personal circumstances although there was no evidence of a causal link between those circumstances and the offending. In that case the circumstances were described as “so extreme” that they should have been taken into account even in respect of serious commercial offending.[203] Nothing I have said is intended to detract from the ability of the sentencing judge to recognise such circumstances.
[203]Jarden, above n 186, at [14].
Finally, I agree that ss 25 to 27 of the Sentencing Act are an important means of ensuring that the Court has the necessary information.[204] Those sections are not, however, the only means by which information as to background factors and other personal circumstances can be brought before the Court. On occasion, for example, whānau or other community members may appear in person and in other cases less formal means of providing relevant information may be adopted. In particular, it should be clear that where, for example, an offender re-offends and the Court already has considerable information before it, less formal ways of providing this material or any additional information may be well appropriate.[205]
Other matters
[204]Compare Williams J above at [16](c) and [147].
[205]Williams J above at n 105.
In terms of Mr Berkland’s appeal, I make one further point. I do not accept that it is proper to consider the material from the subsequent forfeiture proceeding.[206] Mr Berkland pleaded guilty on the basis of the summary of facts and it is not for us now to second guess the factual position based on subsequent material prepared for a different context.
[206]Contrast Williams J above at n 94.
In terms of Mr Harding’s appeal I make three points. First, it is wrong to say, as the Crown does in supporting the approach of the Courts below, that Mr Harding is one step down from life imprisonment. A consideration of cases where life imprisonment has been imposed indicates a combination in those cases of a large commercial scale operation, a person who is the mastermind and/or the addition of relevant previous offending.[207] Previous drug offending was not a feature in Mr Harding’s case; nor was the quantum of drugs when viewed against the quantities involved in importations as high.
[207]Contrast, for example, Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 (large scale and leading role); and Rhodes v R [2009] NZCA 486 (large scale and offending whilst on parole for other drug offending).
Second, Zhang removed the subdivision of the R v Fatu bands functionally between supply, importation, and manufacture.[208] The amount being manufactured relative to other manufacturers is not irrelevant but when Mr Harding’s offending is considered in the context of Zhang, I agree that a contrast can be made with the starting point of Mr Yip in Zhang.[209]
[208]Zhang v R, above n 177; and R v Fatu [2006] 2 NZLR 72 (CA).
[209]Williams J above at [50].
Finally, sentencing judges obviously operate within a framework for which life imprisonment is the maximum sentence for drug offending like that in issue here. The Sentencing Act makes it clear that the maximum sentence is to be imposed for the most serious cases.[210] However, in my view, the Court can say we have got to a point where the sentencing levels for commercial drug offending are simply too high.[211] It is difficult to see that personal or general deterrence are better served by a 28 year sentence rather than, say, a 22 year sentence.
[210]Sentencing Act 2002, s 8(c).
[211]R v AM, above n 185, at [28].
Solicitors:
Ord Legal, Wellington for Appellant SC 40/2020
Watkins Law, Kaikohe for Appellant SC 64/2020
Crown Law Office, Wellington for Respondent SC 40/2020 and SC 64/2020
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