Hearing:	3 March 2020 (further material received 4 March 2020)
Court:	French, Dobson and Moore JJ
Counsel:	L C Ord and E T Blincoe for Appellant C Ure for Respondent
Judgment:	8 May 2020 a t 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
B The appeal against sentence is allowed.
C The sentence of 13 years and three months’ imprisonment imposed by the High Court is quashed and substituted with a sentence of 12 years and nine months’ imprisonment.
DThe minimum period of imprisonment of six and a half years imposed by the High Court is quashed and substituted with a minimum period of imprisonment of six years and three months.

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REASONS OF THE COURT

(Given by French J)

Following a sentencing indication, Mr Berkland pleaded guilty to serious drug dealing offences. He was sentenced in the High Court by Collins J to a term of imprisonment of 13 years and three months, with a minimum period of imprisonment of six and a half years.[1]
[1]R v Berkland [2018] NZHC 1520.
Mr Berkland now appeals his sentence.
The appeal was filed out of time due to difficulties in finding legal representation. The Crown did not oppose an extension of time being granted and we so order.
The key issues raised by the appeal are:
(a)Was the Judge’s starting point too high in light of this Court’s subsequent decision in Zhang,[2] or too high because of disparity with the sentence imposed on a more culpable co-offender Mr Blance?
(b)Was a sufficient discount allowed for personal mitigating factors?
(c)Was a minimum period of imprisonment justified?

Background

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

The charges arose out of a covert police investigation targeting the commercial supply of bulk methamphetamine by Messrs Blance and Berkland, both senior members of the Porirua Mongrel Mob. The investigation commenced on 30 November 2016 and terminated on 11 April 2017. It is said to have identified both men as drug dealers of some note who had established a methamphetamine dealing network supplying other suppliers from the greater Wellington region.

The summary of facts

The police summary of facts describes the operation of the network and the respective roles of the two men in it as follows.
Mr Blance was the head of the operation and his home address in Coates Street was its central hub. Mr Berkland lived a short distance away in Tremewan Street. He was Mr Blance’s right hand man and would run the supply network from the Coates Street address in Mr Blance’s absence. In some instances, if customers were unable to contact Mr Blance they would contact Mr Berkland to check on the availability of either of the two men or their supply of methamphetamine.
Mr Berkland…

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.

Continue reading Berkland v R

Details

AGLC: Berkland v R [2020] NZCA 150
Case: [2020] NZCA 150
Decision Date: 8 May 2020 a t 11 am

CaseChat Overview and Summary

In the case of Berkland v R, the appellant, William Berkland, appealed against the sentence imposed by the High Court, arguing that the starting point was too high, the discount for personal mitigating factors was insufficient, and the imposition of a minimum period of imprisonment was unjustified. The Crown did not oppose an extension of time being granted for the appeal, which was filed out of time due to difficulties in finding legal representation. The appeal was subsequently allowed by the Court of Appeal of New Zealand.

The Court of Appeal considered whether the starting point of 16 and a half years' imprisonment was too high, taking into account the appellant's role in the drug dealing operation and the subsequent decision in Zhang v R. The Court concluded that the starting point was within range under the new sentencing guidelines and the previous case law, and that the appellant's role could be considered towards the upper end of significant.

The Court also considered whether a sufficient discount was allowed for personal mitigating factors, such as the appellant's drug addiction and social, cultural, and economic deprivation. The Court accepted that the Judge did not have all the relevant material before him, and that an additional six-month discount was warranted, taking the total discount for personal mitigating factors to 12 months.

Lastly, the Court examined whether a minimum period of imprisonment was justified. The Court concluded that a minimum period of imprisonment of 50 per cent of the end sentence was fully justified in terms of the requirements of section 86 of the Sentencing Act 2002, but the length of the minimum period of imprisonment also required a corresponding adjustment downwards, resulting in a minimum period of imprisonment of six years and three months.

As a result of the Court's decision, the appeal against sentence was allowed. The sentence of 13 years and three months' imprisonment imposed by the High Court was quashed and substituted with a sentence of 12 years and nine months' imprisonment, with a minimum period of imprisonment of six years and three months. The application for an extension of time to appeal was granted.

Orders