How v The King

[2025] NZHC 2396

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2025-454-000016

CRI-2025-454-000017 [2025] NZHC 2396

BETWEEN

BERNARD GREGORY HOW

Appellant

AND

THE KING

Respondent

Hearing:	15 July 2025
Counsel:	E C Killeen for Appellant K S Barber for Respondent
Judgment:	21 August 2025

JUDGMENT OF LA HOOD J

(Appeal against sentence)

[1]                 Mr How was sentenced to 10 years, two months and two weeks’ imprisonment,1 having pleaded guilty to manufacturing and supplying significant amounts of methamphetamine,2 and driving charges.3 He appeals the sentence on the grounds that the Judge erred in not allowing the maximum reduction for Mr How’s guilty plea, and in refusing to allow further reductions for Mr How’s addiction, remorse and rehabilitative potential.

1      R v Dudley [2024] NZDC 24789.

2      The drug charges were manufacturing methamphetamine (Misuse of Drugs Act 1975, s 6(1)(b) and (2); maximum penalty life imprisonment), supplying methamphetamine (s 6(1)(c) and (2); maximum penalty life imprisonment), conspiring to supply methamphetamine (s 6(2); maximum penalty 14 years’ imprisonment), and possessing methamphetamine for supply (s 6(1)(f) and (2); maximum penalty life imprisonment).

3      The driving charges were dangerous driving (Land Transport Act 1998, s 35(1)(b); maximum penalty three months’  imprisonment)  and  driving  with  blood  containing  a  controlled  drug (s 58(1)(b); maximum penalty three months’ imprisonment).

HOW v R [2025] NZHC 2396 [21 August 2025]

The offending

[2]                 The drug charges arose from an investigation between April and November 2022 into the supply of methamphetamine throughout the lower North Island.

[3]                 Mr How independently transported large quantities of cash to Auckland to pay for kilogram quantities of methamphetamine. Once arriving back  in  the  lower North Island, he distributed large amounts of methamphetamine in five or 10 ounce quantities to dealers and provided the cash profits back to the principal offenders.

[4]                 When the Auckland source became problematic in October 2022, Mr How and his associates began manufacturing their own supply. They manufactured methamphetamine on four occasions. Mr How also  leased  a  building  in Palmerston North that was used to manufacture methamphetamine and store drugs, cash, and manufacturing equipment.

[5]                 Search warrants were executed  on  8  November  2022,  resulting  in  over  10 kilograms of methamphetamine being located and just over $560,000 cash seized.

14.2 kilograms of methamphetamine had been supplied prior to termination. Mr How was therefore involved in the  supply,  possession  for supply  and  manufacture  of 24 kilograms of methamphetamine.

[6]                 The driving charges arose on 15 September 2021. Mr How drove to a lifestyle property in Ashhurst where police were conducting a search. An officer signalled for him to stop. Mr How reversed his vehicle at speed and struck a metal bollard, flattening it, and drove back onto the road. An unmarked police car activated its lights and began to follow Mr How’s vehicle. The pursuing officer estimated that Mr How accelerated to in excess of 150 kilometres per hour in a 100 kilometres per hour zone, causing the officer to stop the pursuit.

[7]                 As Mr How approached a sharp corner in the rain, the police deployed a tyre deflation device. Mr How tried to pass another vehicle on the inside in an effort to avoid the deflation device. This caused that vehicle to cross the deflation device, deflating two of tyres, which cost $850 to repair. As a result of the speed at which Mr How tried to negotiate the sharp bend, he lost control of his vehicle, crashing off

the road surface into a roadside drain. He was transported to the hospital, where a sample of his blood was taken. Analysis of the sample found it contained methamphetamine.

Sentencing decision

[8]                 Mr How was sentenced together with the head of the drug network, Mr Dudley. The Judge adopted a starting point of 16 and a half years’ imprisonment, finding that Mr How’s role “sits … at the mid-point of the significant category”.4

[9]                 The Judge did not uplift the starting point for personal aggravating factors. He allowed a 20 per cent reduction for Mr How’s guilty plea, noting that while this guilty plea came later than his co-defendants, and thus the reduction might be seen as generous, drug offending cases are “difficult” and the quantum of methamphetamine involved needed to be settled before Mr How would plead guilty.5

[10]              The Judge imposed a reduction of 15 per cent for Mr How’s adverse childhood experiences that led to his abuse of alcohol and drugs.6 The Judge did not allow a separate credit for the role Mr How’s addiction played in his offending. The Judge considered that, while Mr How was paid in methamphetamine and was not at the highest level in the operation, this offending went “beyond offending to feed an addiction”, involving vast sums of money and amounts of methamphetamine, and the reduction for Mr How’s background sufficiently captured the background matters that reduced his culpability.7

[11]              The Judge declined to allow a reduction for Mr How’s health. He considered Mr How’s worst health issues were gout and diabetes, but said that Mr How was being medicated, his situation was not unique, and that he must have confidence in the ability of the prison’s healthcare system to care properly for offenders.8

4      R v Dudley, above n 1, at [79]–[92].

5 At [93].

6 At [95].

7      At [96]–[98].

8      At [99]–[101].

[12]              The Judge did not give a credit for Mr How’s remorse or rehabilitative prospects. He found that Mr How’s motivation to do better was in doubt, relying on a report from the Bridge Programme that said Mr How did not properly engage with the programme, and the lack of hard evidence of Mr How’s sobriety and willingness to change.9

[13]              The Judge imposed a six-month credit for the 14 and a half months Mr How spent on electronically monitored (EM) bail. Four months of  this  was  at  the  Bridge Programme, which the Judge said was for Mr How’s benefit and not particularly successful.10

[14]              This resulted in an end sentence of 10 years, two months and two weeks’ imprisonment.11 The Judge decided “[b]y a slight margin” that a minimum period of imprisonment was not required,12 and remitted $3,386 Mr How owed in fines.13

Application for leave to appeal out of time

[15]              The appeal has been filed six months late, largely because it was initially incorrectly filed in the Court of Appeal. The Crown does not oppose leave. I consider it should be granted and do so accordingly.

Approach on appeal

[16]              Mr How must establish that there was an error in the sentence reached and that a different sentence should have been imposed.14 Sentencing “is not a science” and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer”.15 The court will not generally intervene unless a sentence is manifestly excessive,16 and outside the range available to the sentencing judge.17

9      At [102]–[105] and [40]–[41].

10     At [107]–[108].

11 At [108].

12     At [110]–[111].

13 At [112].

14     Criminal Procedure Act 2011, s 250(2).

15     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30] and [35].

16 At [35].

17 At [36].

Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.18

[17]              As I have previously said, the “well-engrained”19 error principle recognises that reasonable minds can differ about where an appropriate sentence should sit within an available range.20 This reflects underlying purposes important to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.21

Appellant’s position

[18]              As noted above, Ms Killeen, for Mr How, submits the Judge erred in two ways. First, she says the full 25 per cent reduction should have been allowed for Mr How’s guilty plea. Second, she contends the Judge should have allowed further reduction for Mr How’s remorse and rehabilitative prospects. I will deal with each in turn.

Guilty plea reduction

[19]              The prosecution was initiated on 2 December 2022. Mr How pleaded guilty to the charges on 26 August 2024, approximately two months before trial.

[20]              Ms Killeen submits Mr How has always been motivated to resolve the drugs charges, and sought sentence indications on all charges in March and May 2023. The Crown advised on 8 May that all other defendants would be going to callover on    24 August 2023, the 25 per cent reduction for guilty pleas would continue until callover, and that it was best for all defendants to remain together at the time. At that August 2023 callover, Ms Killeen again indicated that Mr How sought a sentence indication, although on all charges excluding the firearms and ammunition charges he then faced.

[21]              The Crown was due to file an agreed summary of facts and submissions for any defendant wanting a sentence indication by 8 November 2023. Ms Killeen says

18     At [30]–[36].

19     Tutakangahau v R, above n 15, at [34]–[35].

20     Johnson v R [2023] NZHC 3748 at [6]; and M v R [2024] NZHC 3632 at [9].

21     Johnson v R, above n 20, at [6]; and M v R, above n 20, at [9].

that an email from the Crown on 3 November 2023 in anticipation of this put an end to resolution discussions as there was no willingness to move from the Crown charge notice or the summary of facts in terms of quantum and role. However, as the Crown notes, the quantum and role did not change with respect to Mr How throughout the proceedings. The quantum and role as at the date of the Crown’s 3 November 2023 email was the basis on which Mr How eventually pleaded guilty and was sentenced. Further, although in its 3 November email the Crown identified difficulties with changing its position on quantum and role (or rolling up charges into representative charges), it expressly stated that it would do what it could to consider specific proposals before 9 November.

[22]              Ms Killeen notes that the number of charges decreased. He initially faced 12 charges, but this was reduced to five. The Crown submits this reduction did not reflect a change in the factual basis of the charges. Instead, this reduction was by way of rolling the charges into representative charges  in  a  manner  that  did  not  reduce Mr How’s overall culpability.

[23]              The Crown says the only substantive change to the charging structure was the removal of the firearms charges. However, a description of firearms associated with the network was largely included in the final summary of facts on which Mr How was sentenced. And the Crown says the presence of the firearms was unlikely to have had a meaningful impact on the starting point given the sheer quantity of methamphetamine involved.

[24]              Ms Killeen notes Mr How sought resolution immediately after the principal offender had resolved his charges, which included the removal of the firearms charges, and pleaded guilty on 28 May 2024. She contends it was apparent that there could be no resolution for those lower down the chain until this occurred. The Crown disagrees. The Crown submits that despite the preference to resolve matters globally, there was nothing stopping the defendants seeking to resolve individually or entering guilty pleas to some of the charges and formally disputing facts (if required). The Crown says this was explained to Mr How in its 3 November 2023 email.

[25]              In Hessell v R, the Supreme Court held that the quantum of a reduction for guilty pleas is an evaluative exercise that involves consideration of factors including the timing of the plea relative to charge and trial, the scale and complexity of the trial, the justification for any delay and the inevitability of conviction.22

[26]              In Karetu v R,23 Mander J upheld a 20 per cent guilty plea reduction on appeal. Guilty pleas were entered following the amendment of a representative charge of supplying methamphetamine to a representative charge of offering to supply the drug, and the amendment of a charge of unlawful possession of ammunition to a lesser finable only charge. With respect to the former, the Judge noted that both charges carry the same maximum penalty of life imprisonment and are subject to the same sentencing guidelines. In relation to the latter, he considered the charge was peripheral. The Judge concluded that the alterations made no material difference either to the facts of Mr Karetu's offending or to his overall culpability, and that the process did not adequately account for the delay in the entry of the pleas.

[27]              I do not consider the 20 per cent reduction can be said to be in error. The rolling up of the 12 methamphetamine charges into five representative charges did not alter Mr How’s culpability. The Crown’s position on his involvement in the manufacture and supply of 24 kilograms of methamphetamine remained unchanged throughout the proceedings. I do not consider the withdrawal of the firearms charges changes the position. Mr How could have pleaded guilty to the drugs charges and maintained his not guilty pleas to the firearms charges.

[28]              Further, it is clear from the Crown’s 3 November 2023 email that it was willing to consider resolution proposals from individual defendants. As Ms Killeen accepted during oral argument, following that email Mr How could have offered to plead guilty on the basis he eventually did. If he had done so, the full 25 per cent reduction would likely have been available. In the absence of doing so, I consider the full reduction is not available. While it is understandable that Mr How may have wanted to wait until the Crown’s position on his co-defendants was finalised, the consequences of waiting

22     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

23     Karetu v R [2024] NZHC 207 at [13].

without making a clear offer to plead guilty on the basis he eventually did, is that he is not entitled to a full credit for his plea.

[29]              Ultimately, Mr How pleaded guilty just two months before trial. The Judge correctly accepted that, despite this delay, a generous reduction of 20 per cent was still available having regard to the changes to the charge structure and the difficulties with plea negotiations in complex, multi-defendant drugs cases. For the reasons given, I consider it was clearly open to the Judge to conclude that a 20 per cent reduction was appropriate.

Addiction, remorse and rehabilitative potential reductions

[30]              Ms Killeen further submits that the Judge should have given a separate reduction for the events that led to Mr How becoming involved in the drug operation, being his long-standing methamphetamine addiction which could no longer be funded due to his loss of employment. Ms Killeen says the Bridge Programme report must be seen in the context that the shared therapeutic environment was new and challenging for a man in his late fifties who is “somewhat set in his ways”. She highlights that he was on EM bail for a year following this without significant incident, during which he passed a drug test. This, she submits, indicates that Mr How is remorseful, has insight into his offending, has undergone meaningful change, and is less likely to come back before the court once he has served his sentence.

[31]              Where reductions for personal mitigation overlap, the Court needs to take care that the purposes of sentencing are not distorted by adopting a series of separate reductions and simply tallying them up.24 The question here is whether the overall reduction for personal mitigation factors of 15 per cent was clearly inadequate, resulting in a manifestly excessive sentence. The assessment necessarily involves questions of fact and degree.

[32]              In Berkland v R, the Supreme Court allowed a 10 per cent reduction for the role addiction and background played in the offending.25 Mr Berkland came from an

24     McCaslin-Whitehead v R [2023] NZCA 259 at [61] and following; and Nguyen v R [2020] NZHC 910.

25     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [16(d)(i)] and [162(a)].

impoverished background and chaotic family circumstances. He was exposed to alcohol, drugs and violence at an early age, and he resorted to alcohol and drugs when he was a child in order to cope with his disturbing home environment. He was exposed to sexual abuse and received limited education.26    By comparison, I consider the    15 per cent reduction for Mr How’s background and addiction was generous (his circumstances  could  not  be   considered   more   worthy   of   recognition   than   Mr Berkland’s).

[33]              I also see no error in the Judge’s finding that this reduction “sufficiently captures the background matters that reduce [Mr How’s] culpability.”27 This conclusion is unsurprising in light of the negative Bridge Programme report and failure to complete the programme.

[34]              Ms Killeen says that while the Bridge Programme would have been challenging for Mr How, at least he stuck it out until he was exited from the programme on the last day. However, the question for me on appeal is whether this level of effort compelled a further reduction for prospects of rehabilitation, the absence of which has resulted in a manifestly excessive sentence. Mr How’s failed effort to complete the Bridge Programme falls well short of this standard. His ability to comply with EM bail following this (and pass a single drug test) are commendable, but are also insufficient to meet this standard (and Mr How’s EM bail compliance was recognised with a separate reduction in any event).

[35]              The same can be said of the suggestion that he demonstrated tangible remorse additional to his guilty plea that required a discrete reduction.28 The best way to have demonstrated genuine remorse would have been to fully engage with and complete the Bridge Programme.

[36]              The question is not whether another Judge may have been more generous by allowing some further reduction for prospects of rehabilitation and remorse, but whether the Judge’s approach was open to him. For the reasons given, I consider it

26     At [151]–[158], as summarised in Dudley v R [2025] NZCA 379 at [17].

27     R v Dudley, above n 1, at [98].

28     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].

was. But even if I am wrong about this, I consider the Judge’s generous reduction for background and addiction, means the overall reduction of 15 per cent was within range.29

[37]I therefore dismiss the appeal.

La Hood J

Solicitors:

Esme Killeen, Palmerston North for Appellant Crown Solicitor, Palmerston North for Respondent

29 By comparison, Mr Berkland received an overall reduction of 20 per cent for his addiction, his deprived and traumatic background, and his genuinely exceptional rehabilitative efforts: Berkland v R, above n 25, at [159]–[163].