Berkland v R

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 40/2020
[2020] NZSC 125

BETWEEN	WILLIAM ALLAN BERKLAND Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Ellen France and Williams JJ
Counsel:	L C Ord and E T Blincoe for Applicant C Ure for Respondent
Judgment:	17 November 2020

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted (Berkland v R [2020] NZCA 150).

BThe approved question is whether the Court of Appeal’s decision was correct.

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REASONS

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.
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.[1]
[1]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

Solicitors:
Ord Legal, Wellington for Applicant
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

In Berkland v R, the applicant, William Allan Berkland, sought leave to appeal against a decision made by the Court of Appeal. The nature of the dispute centred around sentencing issues, specifically the starting point for the applicant's sentence, the consideration of personal mitigating circumstances, and the imposition of a minimum period of imprisonment. The Supreme Court of New Zealand, comprising Glazebrook, Ellen France, and Williams JJ, was tasked with determining whether the Court of Appeal's decision was correct.

The primary legal issues that the Supreme Court had to decide involved the appropriate weight given to the applicant's limited role in the offending, the correct approach to personal mitigating circumstances, and the appropriateness of the minimum period of imprisonment. The Court was particularly focused on whether the Court of Appeal had sufficiently considered the applicant's lesser role compared to his co-offender when setting the starting point for the sentence. Additionally, the Court needed to examine whether the Court of Appeal correctly required a causal link between the applicant's addiction or history of deprivation and his offending when assessing personal mitigating circumstances. Finally, the Supreme Court had to determine if the Court of Appeal was correct in upholding the imposition of a minimum period of imprisonment.

The Supreme Court granted the applicant leave to appeal, indicating that the Court of Appeal's decision was correct. The Court emphasised that this appeal was not intended to be a comprehensive re-examination of the guideline judgment in Zhang v R. Instead, the focus was on specific issues related to the applicant's sentencing. The Court found that the Court of Appeal had appropriately considered the relevant factors in setting the starting point for the applicant's sentence, had applied the correct approach to personal mitigating circumstances, and had properly upheld the imposition of a minimum period of imprisonment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established