DARREN ANDREW CREELMAN AND THE KING
[2025] NZCA 160
•12 May 2025 at 11 am
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA467/2024
[2025] NZCA 160
BETWEEN DARREN ANDREW CREELMAN Appellant AND THE KING Respondent
| Hearing: | 27 March 2025 |
| Court: | Woolford, Muir and Isac JJ |
| Counsel: | J J Rhodes for Appellant |
| B D Tantrum and R A van Boheemen for Respondent | |
| Introduction |
Darren Creelman was sentenced to nine years’ imprisonment in the
District Court on 12 drug dealing and firearms offences.[1] He now appeals his
[1] R v Creelman [2024] NZDC 16790 [Sentencing Notes]. In total Mr Creelman was sentenced on
sentence, arguing that the individual and combined starting points and uplifts adopted
by the Judge were too high, and resulted in a sentence that is manifestly excessive.[2]
[2] Pursuant to Criminal Procedure Act 2011, s 250. The Court must allow an appeal if for any reason
The offending
On 5 February 2021, Mr Creelman was wanted for arrest. Police went to an
address on Jervois Road in Herne Bay searching for him. As they made their way
towards the property, one of the occupants broke the bathroom window and threw a
fully loaded .22 calibre revolver over the head of one of the attending officers and into
a neighbouring property. On entry police found three of Mr Creelman’s associates in
the living room. They heard the toilet flush, and then located the appellant in the
bathroom after he had disposed of a quantity of methamphetamine. Following a search
of the apartment and later search of a vehicle seized from the exterior carpark, police
located quantities of methamphetamine, ammunition, a large sum of cash, sets of
electronic scales, false driver licences, and precursor substances used to manufacture
methamphetamine. At the time Mr Creelman was subject to a sentence of intensive
supervision for offences committed in 2020 and on parole for drug dealing offences
committed in 2013.
Mr Creelman eventually pleaded guilty to eight charges in total — three of
possession of methamphetamine for supply, one of unlawful possession of a firearm,
two of unlawful possession of ammunition and two of dishonestly obtaining the false
licences. Following a disputed facts hearing, Judge Sharp determined that Mr Creelman had flushed not less than 250 grams of methamphetamine down the
toilet.[3] In total, Mr Creelman was in possession of 349.7 grams of the drug.[4]
[3] R v Creelman [2024] NZDC 4932.
[4] Sentencing Notes, above n 1, at [39].
[4] While on bail for the Jervois Road offending, Mr Creelman was residing at a
live‑in drug rehabilitation facility in Dairy Flat, Auckland. On 6 October 2022, police
executed a search warrant at the address finding firearms, methamphetamine and
precursor substances concealed in a bucket near Mr Creelman’s bedroom.
Mr Creelman pleaded not guilty but was convicted by a jury of four further charges,
namely possession of 377 grams of methamphetamine for supply,[5] possession of just
[5] The Judge noted at [30] that Mr Creelman was found by the jury to be in possession of 395 grams
under one kilogram of pseudoephedrine, and possession of a semi‑automatic pistol
and 200 rounds of .22 ammunition.
The sentence under appeal
The position for the Judge at sentencing was not straightforward. There were
two discrete sets of offences on which Mr Creelman was for sentence that were
separated by 20 months. In addition to different aggravating features between the two
sets there were also differing mitigating factors, given Mr Creelman’s pleas.
[6] Judge Sharp first set a starting point for the October 2022 offending. He
considered the jury’s verdicts required sentencing to proceed on the basis that the
appellant had at least joint custody and control of the drugs, firearms and ammunition.[6]
There were “doubts” as to precisely what Mr Creelman’s role in the offending had
been.[7] However, the Judge concluded it was “greater than the lower level, but not
sufficient to elevate it into the higher levels for control”.[8] A starting point of six years’
imprisonment was therefore adopted.[9] From that a reduction of one year was applied
to reflect the causal connection between addiction and the offending. An uplift of 12 months was then required for each of the charges of unlawful possession of a
firearm and possession of pseudoephedrine.[10] That resulted in an adjusted “starting
point” of seven years’ imprisonment.
[6] At [29].
[7] At [33].
[8] At [36]. For a description of the levels of roles within methamphetamine offending see
[9] At [37].
[10] At [38].
In relation to the February 2021 offending, the Judge found as a matter of proof
Mr Creelman had not engaged in manufacturing methamphetamine at the address.
There were also others present who, in addition to Mr Creelman, had
methamphetamine “in their direct possession”.[11] The offending fell within band three
of Zhang and a starting point of eight years was adopted.[12] An uplift of 12 months
was then applied for the firearms charges, and a reduction of 18 months provided for
Mr Creelman’s guilty plea.[13]
[11] At [40].
[12] At [42], citing Zhang v R, above n 8.
[13] At [42].
Combining the starting points for both sets of offences resulted in a combined
starting point of 14 years and four months’ imprisonment.[14] A further discrete uplift
of six months’ imprisonment was applied because all of the offending had occurred
while the appellant was subject to a sentence, on parole and on bail.[15] The adjusted
starting point of 14 years and 10 months’ imprisonment was then reduced to 13 years
on account of totality.[16] However, a further uplift of six months’ imprisonment was
imposed given Mr Creelman’s previous criminal history was “considerable”.[17] This
resulted in an adjusted starting point of 13 years and six months’ imprisonment.
[14] At [43]. We note the Judge appears to have incorrectly calculated the adjusted starting point for
[15] At [43].
[16] At [44].
[17] At [45].
In terms of mitigating factors, reductions totalling 54 months, or four years and
six months’ imprisonment, were provided in recognition of the appellant’s prospects
of rehabilitation, background, and time spent on restrictive bail conditions.[18]
[18] The Judge applied discounts of 30 months for rehabilitative prospects (at [46]), 18 months for the
For the appellant, Mr Rhodes submits the individual starting points and uplifts
were too high, and as a result the combined starting point was disproportionate. A
global starting point for both sets of offences should have been “around” nine years’
imprisonment, and an appropriate end sentence would have been in the region of
five years and nine months. The appellant’s central point is that by treating the two
sets of offences discretely and adopting cumulative starting points, the end sentence
failed to reflect the overall gravity of the offending and the requirements of totality.
For the respondent, Mr Tantrum argues the starting points — both discrete and
combined — were clearly within range, and the end sentence properly allowed for the
totality of Mr Creelman’s offending and personal circumstances. Mr Creelman’s
involvement indicates a “significant” role in the drug dealing operation on both
occasions, as identified in Berkland and Zhang. Relevant sentencing authorities
indicate that had a starting point for the drug offending been set in isolation, a starting
point of 10 years’ imprisonment could have been expected before uplifts for the
firearms and other charges.[19]
[19] Relying on Duthie v R [2023] NZCA 312; and Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
At the core of the offending for which Mr Creelman was sentenced was his
possession of methamphetamine in dealing quantities on two occasions, aggravated
by the presence of firearms and ammunition. The second set of charges arose while
Mr Creelman was still on bail awaiting trial in relation to the first set. The Judge also
appears to have accepted Mr Creelman’s role was similar on both occasions. In
relation to the October 2022 offending, the Judge considered the appellant had at least
“joint custody or control, of the drugs, the firearms, and the ammunition”, and that
Mr Creelman had a “greater than the lower level” role but not one “sufficient to elevate
it into the higher levels of control”.[20] For the February 2021 offending, while the
Judge did not explicitly refer to an assessment of Mr Creelman’s role, he did find there
was no evidence the appellant had been involved in the manufacture of the
methamphetamine, in contrast to others present at the address, and there was evidence
the co‑defendants “had methamphetamine in their direct possession”.[21]
[20] Sentencing Notes, above n 1, at [29] and [36].
[21] At [40].
The Judge did not impose cumulative sentences. His methodology instead
involved the aggregation of individual starting points to reach a combined starting
point. In this context, s 84 of the Sentencing Act 2002 provides some guidance for the
treatment of offences of a similar kind at sentencing and the use of cumulative and
concurrent sentences. Cumulative sentences of imprisonment are generally
appropriate if the offences for which an offender is being sentenced are different in
kind, whether or not they are a connected series of offences.[22] Concurrent sentences,
which are usually fixed using a global starting point, are generally appropriate if the
offences are of a similar kind and are a connected series of offences.[23] In determining
whether offences are a connected series, the court may consider the time at which they
occurred, the overall nature of the offending, or any other relationship between the
offences that the court considers relevant.[24] Where a court is considering imposing
cumulative sentences of imprisonment, they must not result in a period of
imprisonment that is wholly out of proportion to the gravity of the overall offending.[25]
[22] Sentencing Act 2002, s 84(1).
[23] Section 84(2).
[24] Section 84(3).
[25] Section 85(2).
While it was open to the Judge to adopt adjusted starting points, we consider a
preferable approach would have been for the Judge to have cross‑checked the
combined 14 year starting point he proposed to adopt against one determined on a
global basis. This would have enabled an assessment whether the cumulative starting
points met the requirements of totality, even after adjustment.[26] This is especially so
given the focus in applying Zhang on the total volume of drugs over the period under
consideration.[27]
[26] For an example of this, see Pryor v Police [2022] NZHC 1011 at [17]. In this decision, a global
[27] See for example Malolo v R [2022] NZCA 399 at [18]; and Cossey v R [2021] NZCA 677.
The total amount of methamphetamine for supply in Mr Creelman’s possession
over the period of the offending was 726.7 grams. That places it toward the bottom of
band four of Zhang, with a starting point between eight and 16 years’ imprisonment.[28] Given the Judge’s apparent conclusion that the appellant’s role fell in the mid to lower
end for the culpability range, we consider a global starting point on the possession for
supply charges ought to have been 10 years’ imprisonment before adjustment for the
additional charges, and personal aggravating and mitigating factors. We note our
global starting point is also consistent with the respondent’s view of the drug offending
if viewed in isolation and the authorities Mr Tantrum relied on.
[28] Zhang v R, above n 8, at [125]. Band four is for quantities of methamphetamine between
Applying the same uplifts and reductions as those adopted by the Judge to a
10 year starting point results in an end sentence of seven years’ imprisonment. Given
the two‑year disparity in end sentences, we are satisfied the sentence imposed was
manifestly excessive.
Were the Judge’s uplifts within range?
[17] Given our conclusion on the main ground of appeal, we deal with
Mr Creelman’s second ground of appeal briefly. It was suggested the total uplift
applied by the Judge for the firearms charges of two years’ imprisonment was too high
when compared to similar cases.[29]
[29] See R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338; Griffin v R [2020] NZHC 548; and
We disagree. The uplifts for the firearms charges were well within range, if
not generous to the appellant. The fact the February 2021 offending involved a
confrontation with police when Mr Creelman was in possession of a loaded revolver
is concerning. Nor can any criticism be made of the other uplifts adopted for
Mr Creelman’s extensive previous history of drug offending, and for offending while
on bail and parole. These were seriously aggravating features and could have
warranted substantially greater uplifts than those applied by the District Court.
Conclusion and Result
The appeal against sentence is allowed.
The sentence of nine years’ imprisonment on the charges of possession of
methamphetamine for supply is set aside.
The appellant is sentenced to seven years’ imprisonment on the charges of
possession of methamphetamine for supply. All other sentences remain the same.
Solicitors:
Te Rōia Matua a Te Karauna ki Tāmaki Makaurau | Crown Solicitor, Auckland for Respondent
| Judgment: | 12 May 2025 at 11 am |
JUDGMENT OF THE COURT
| A | The appeal against sentence is allowed. |
| B | The sentence of nine years’ imprisonment on the charges of possession of |
| methamphetamine for supply is set aside. | |
| C | The appellant is sentenced to seven years’ imprisonment on the charges of |
| possession of methamphetamine for supply. All other sentences remain | |
| the same. |
REASONS OF THE COURT
(Given by Isac J)
CREELMAN v R [2025] NZCA 160 [12 May 2025]
four charges of possessing methamphetamine for supply; two charges of unlawful possession of
firearms; three charges of unlawful possession of ammunition; two charges of dishonest use of a
document; and one charge of possession of pseudoephedrine.
there has been an error in the sentence imposed and a different sentence should be imposed. An
error includes if the sentence was manifestly excessive: see Tutakangahau v R [2014] NZCA 279,
[2014] 3 NZLR 482 at [32]–[35].
of methamphetamine, but reduced that to 377 grams to take into account purity. Counsel noted
that whether that reduction is correct is not clear, but it is of no moment to the present appeal.
Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [71] and Zhang v R [2019] NZCA 507,
[2019] 3 NZLR 648 at [126].
the February 2021 charges. The adjustments identified at sentencing would result in a sentence of
14 years and six months’ imprisonment.
factors identified in Mr Creelman’s s 27 report, (at [47]), and six months for time on bail (at [48]).
starting point was considered appropriate on appeal for two drug dealing charges six months apart
because they were similar in kind despite occurring on two separate occasions. Separate starting
points for each set of charges had led to a final starting point that was too high having regard to
the overall culpability of the offender.
500 grams and 2 kilograms.
Berkland v R, above n 8.
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