R v Kahlon
[2025] NZHC 350
•21 February 2025
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF THE DEFENDANT’S CO-ACCUSED (MR S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2023-004-004305
[2025] NZHC 350
THE KING v
HIMATJIT SINGH KAHLON
Hearing: 21 February 2025 Appearances:
P R McNabb for the Crown
E P Priest and P Wilks for Mr Kahlon
Sentencing:
21 February 2025
SENTENCING NOTES OF TAHANA J
[Redacted]
This judgment was delivered by me on 21 February 2025
…………………………
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Meredith Connell, Auckland Augusta Chambers, Auckland
R v KAHLON [Sentencing Notes] [2025] NZHC 350 [21 February 2025]
Introduction
[1] Mr Kahlon, you appear for sentencing today. After a jury trial, you were found guilty of the manslaughter of Aiden Sagala after you gave him trays of beer.1 Unbeknown to Mr Sagala, the beer can that he drank from contained methamphetamine. Mr Sagala sadly passed away because of the quantity of methamphetamine he had consumed.
[2] You were also found guilty of possession of methamphetamine for supply.2 As to the quantity of methamphetamine, the defence say the range is from 628 kilograms to 646 kilograms and the Crown say the range is from 628 to 741 kilograms. Given the quantity of methamphetamine involved, I do not consider that the difference (some 95 kilograms) has any impact on my sentencing, so I adopt the range of 628 to 741 kilograms on this basis.
[3] In sentencing you Mr Kahlon, I must accept as proved, all of the facts which were essential to the jury’s guilty verdicts.3 As the trial judge, I am entitled to make factual findings based on the evidence at trial, where those findings are consistent with the jury’s verdicts. I will therefore start by setting out what happened and explaining my findings of fact.
[4] I will then briefly explain the purpose and principles of sentencing and my approach to sentencing. I will then work through that approach to arrive at an end sentence.
Offending
Methamphetamine offending
[5] You first became involved in the methamphetamine offending when you helped Mr S to remove the pallets of “Honey Bear” cans and kombucha bottles when they were delivered to the storage facility at Ryan Pace, Manukau in January 2023. There were 28,800 cans of beer and 22,680 bottles of kombucha.
1 Crimes Act 1961, ss 156, 160(2)(b), 171 and 177. Maximum penalty: Life imprisonment.
2 Misuse of Drugs Act 1975, s 6(1)(c), (1)(f) and (2)(a). Maximum penalty: Life imprisonment.
3 Sentencing Act 2002, s 24(1).
[6] The Honey Bear cans had been imported from Canada and the kombucha bottles from Los Angeles. Mr S had paid the freight fees for those imports and organised for them to be transported to the storage facility. The storage facility was also rented by Mr S.
[7] The Honey Bear cans and the kombucha bottles contained methamphetamine dissolved in water. The cans and bottles containing methamphetamine were packaged in with a greater number of identically labelled cans and bottles containing beer or kombucha. This was done to avoid detection by law enforcement agencies.
[8] Inside the storage facility, you helped Mr S to extract methamphetamine from the cans and bottles. You purchased equipment to be used in that process on instructions from Mr S and your fingerprints were found on that equipment. I accept that you acted under the direction of Mr S.
[9] I also accept that it can be inferred from your personal and work phone data that you visited the storage facility on at least 28 occasions between 7 January and 6 March 2023.
[10] You admitted to police that you helped to pour the liquid out of the cans and into containers. You also accepted that you saw the liquid crystallise. The storage facility included a drying room with dehumidifiers where crystals were found in trays. The photos shown to the jury indicate that the methamphetamine was everywhere in the storage facility. It was in buckets of liquid, in drying trays and in snap lock bags weighing one-kilogram each, ready for distribution. I accept that you were involved in all aspects of the extraction and processing of the methamphetamine.
[11] You had the autonomy to come and go from the storage facility because you had your own set of keys. You were also free to take the beer cans away and that is what you did.
Quantity of methamphetamine
[12] I consider, based on the evidence I heard at trial, that while you did not know the exact quantity of methamphetamine, you would have known that you were dealing
with methamphetamine in the hundreds of kilograms. I make this finding based on what was visible in the storage facility and your role in extracting and processing the methamphetamine. The fact that there were scales located in the storage facility and your admission that you helped to seal the snap-lock bags, indicates that you would have known what one kilogram of methamphetamine looked like and that the quantity was likely very significant.
Actual or reckless knowledge
[13] When questioned by police you denied that you knew you were dealing with a controlled drug or methamphetamine. You said that you would go to the storage facility to drink beer with Mr S. When asked what you thought the white crystals were, you said something to do with cocktails. You said that you thought highly of Mr S who is a respected member of your Sikh community and that you were helping a friend.
[14] The effect of the jury’s verdict is that it was satisfied beyond a reasonable doubt that you either had actual knowledge that you were dealing with a controlled drug or that you were reckless as to whether you were dealing with a controlled drug.
[15] Having heard and seen the evidence at trial, I find that you had actual knowledge that you were dealing with methamphetamine. I reach this finding based on the evidence I heard about the extent of your involvement in all aspects of the extraction and processing of the methamphetamine. I do not consider that you would have been given the keys to a storage facility containing methamphetamine worth hundreds of millions of dollars and have not known about it. The risks were too high. I also do not consider that you could have avoided inadvertently drinking the methamphetamine if you were using the storage facility to drink beer but did not know that some of the cans contained methamphetamine. It is simply not believable that you thought you were handling a cocktail mix.
[16] Ms Priest referred to a report from Ms Visser, a clinical psychologist, about your suggestibility and compliance. I agree with the Crown that in light of the evidence, the report should be set aside as I do not consider that any degree of
compliance would have led to you assisting with a large scale methamphetamine operation because you were asked to by someone you respected.
[17] Having found that you had actual knowledge that you were dealing with methamphetamine, I nevertheless accept that you were trusting of, and loyal to, Mr S.
[18] When the police searched your property, they located a Porsche Cayenne (which I understand is from the early 2000s). We also heard evidence at trial that you were generous and would lend money to family and friends without expecting any repayment. I accept that in your culture (like many other cultures) people support one another and lend money without expectation of being repaid. No cash was located at your property or in your vehicles. This contrasts with Mr S where police located
$121,600 in cash Mr S was arrested on 10 March 2023 at the Auckland International Airport waiting to board a flight to Dubai and police located $10,391.20 in cash in his carry-on luggage.
Manslaughter offending
[19] At the time you were involved with extracting and processing the methamphetamine from January to March 2023, you were also a team leader at Fonterra. You had a team who reported to you. Aiden Sagala was a member of your team. He was 21 years old at the time. You took trays of the Honey Bear cans from the storage facility and gave them to members of your team if they had completed their tasks. At that time, you removed some trays of the Honey Bear cans and gave them to Mr Sagala. Mr Sagala had no idea that the Honey Bear cans could contain methamphetamine.
[20] On 2 March 2023, Mr Sagala drank from one of the cans. Soon after, he suffered a serious seizure and was rushed to hospital.
[21] After finding out that Mr Sagala had become unwell and was in hospital, you asked your colleagues to return the trays of beer. You then returned the trays to the storage unit where you met with Mr S.
[22] I accept that you did not know that the cans that you gave to Mr Sagala contained methamphetamine. You did, however, know that there were many Honey Bear cans which did contain methamphetamine because you had been involved in extracting that methamphetamine from the cans.
[23] Mr Sagala sadly passed away on 7 March 2023 because of the quantity of methamphetamine he had consumed from the can you gave him. You heard earlier today the devastation and suffering that an aiga, his whānau, his family have suffered.
Sentencing purpose and principles
[24] In determining your sentence, I must take into account the principles of sentencing.4 Those principles include that I take into account the gravity and seriousness of the offending, including the degree of your culpability;5 the desirability of consistency with appropriate sentencing levels;6 and your personal, family, whānau, community, and cultural background.7
[25] If the offending is within the most serious of cases or near to the most serious of cases, I must impose either the maximum or near to the maximum penalty prescribed for the offence, unless your circumstances make that inappropriate.8
[26] I may also take into account the purposes of sentencing. 9 The Court of Appeal in R v Zhang identified, in the context of methamphetamine sentencing, that particularly relevant purposes include accountability, responsibility, denunciation, deterrence, protection of the community and assistance in rehabilitation and reintegration.10
4 Sentencing Act 2002, s 8.
5 Section 8(a) and (b).
6 Section 8(e).
7 Section 8(i).
8 Section 8(c) and (d).
9 Sentencing Act 2002, s 7.
10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [58].
Approach to sentencing
[27] You are being sentenced on two serious charges. Both carry a maximum penalty of life imprisonment. The Sentencing Act 2002 requires that if a court is considering imposing sentences of imprisonment for two or more offences, the individual sentences must reflect the seriousness of each offence.11
[28] What this means in practice, is that I will consider a sentencing starting point for the methamphetamine offending and for the manslaughter offending and then I will make an adjustment to reflect totality. I note that for the manslaughter offending your counsel and the Crown agree on the appropriate starting point and adjustment required.
[29]In summary, I will approach your sentencing in four steps:
(a)First, I will determine a starting point for the methamphetamine offending.12 I will also determine a starting point for the manslaughter offending.
(b)Second, because concurrent sentences are to be imposed, I will determine a sentence that is appropriate for the totality of the offending involved. This means an uplift will be applied to the starting point for the methamphetamine offending.
(c)Third, I will then adjust the starting point to take account of the aggravating and mitigating factors personal to you.13 In plain terms, that means the negative and positive factors personal to you that are relevant to your sentence.
(d)Finally, I will consider whether I should direct that you must serve a minimum period of imprisonment (MPI).14
11 Sentencing Act 2002, s 85(1).
12 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [6].
13 Above n 12.
14 Sentencing Act 2002, s 86.
Starting point for methamphetamine offending
[30] The Court of Appeal in R v Zhang issued guidelines for methamphetamine offending indicating that the quantity of methamphetamine and the role of the offender are relevant when setting a starting point.15
Quantity
[31] In Zhang, the Court of Appeal identified five bands of offending based on the quantity of the drugs involved, with band five being the most serious and applying where the quantity of the drugs exceeds two kilograms. There is no dispute that band five clearly applies here and specifies that an appropriate starting point will generally range from 10 years’ imprisonment to life imprisonment.
Role of offender
[32] The quantity of methamphetamine is not the only relevant factor.16 The role you played is a very important consideration in fixing culpability and therefore the starting point.17
[33] The Court of Appeal in Zhang identified three role categories: lesser, significant, and leading.18 In Berkland v R,19 the Supreme Court reformulated the “significant” role. The essential characteristic of significant players is that they are important enablers in the chain who take their orders from leaders.20 The Court considered that managers (under the direction of leaders) are likely to be more culpable than those whose tasks are operational.21 The Court noted that:
[68] 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
15 Above n 10, at [118]–[129].
16 Above n 10, at [104].
17 Above n 10, at [118].
18 Above n 10, at [126].
19 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
20 At [67].
21 At [67].
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.
[69] 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.
[34] The “lesser” role profile comprises: someone who performs a limited function under direction; engaged by pressure, coercion, intimidation; involvement through naivety or exploitation; motivated solely or primarily by own addiction or cash significantly disproportionate to quantity of drugs involved; no influence on those above in a chain; little, if any, awareness or understanding of the scale of operation; and/or if own operation, solely or primarily for own or joint use on non-commercial basis.
[35] The Crown argues that your role falls within the “significant” category. Your counsel argues that your role falls within the “lesser” role category; that you had a limited role, and that your culpability and place within band five turns partly on my findings as to whether you had actual or reckless knowledge and the quantity of drugs for which you had knowledge and possession.
[36] I have determined based on the evidence I saw and heard at trial that you knew you were dealing with methamphetamine. I have also determined that while you would not have known the exact amount of methamphetamine you would have known that it was significant and likely in the hundreds of kilograms. I therefore sentence you on the basis that you knew you were dealing with hundreds of kilograms of methamphetamine.
[37] I accept that you had an operational role in the extraction and processing of the methamphetamine. I also accept that your involvement was less than Mr S. You were not involved until January 2023 when you assisted in unloading the pallets. You took instructions from Mr S and checked in with Mr S about the equipment to be purchased.
[38] You, however, were involved in all aspects of the extraction and processing. You had keys to the storage facility and were captured on CCTV going there alone on two occasions. You obviously had the autonomy to take trays of beer and give those
to your work colleagues. This autonomy indicates that you were trusted by Mr S to have access to the storage facility.
[39] I do not accept the Crown’s submission that you and Mr S were not in a hierarchical relationship. I accept that you considered that Mr S was a successful businessman and a respected member of your community, and you trusted him. Your communications with Mr S indicate that you were asking him for instructions.
[40] Given the quantity of the methamphetamine involved and your role in extracting and processing it, I accept that you were aware of the scale of the methamphetamine operation. I accept, as advanced by Ms Priest, that you were not aware of the cocaine offending and that supports you having a lesser overall role than Mr S.
[41] Ms Priest argues that you were not motivated by financial gain but rather by generosity and naivety. In circumstances where I have found that you knew you were dealing with methamphetamine, I do not accept that you were naïve or that you were not motivated by financial gain. The potential financial returns from that quantity of methamphetamine would have been significant. I do however, accept your expectation of financial gain was significantly less than Mr S. You were living a relatively modest life in Manurewa, while he was living in a luxurious house in Clevedon. I consider that evidence indicates that you had a lesser role with lesser financial returns.
[42] I also consider that the method of concealment of the methamphetamine is an aggravating feature of your offending. You saw the methamphetamine in the beverages, you nevertheless participated in extracting and packaging that methamphetamine. As far as I am aware, this is the first case where methamphetamine has been found inside a beverage. You had knowledge of that fact. In my view, this increases the risk to the safety of the community and therefore the importance of deterring others from being involved in extracting methamphetamine from food or beverages.
[43] Having considered your role in the offending, I now consider comparable cases to identify an appropriate starting point.
Parity with co-offender
[44] The starting point I adopt must also reflect parity with your co-offender, Mr S. I adopted a starting point of 32 years’ imprisonment for Mr S’s offending finding that his role was at the high end of significant. I consider that your role was at the lower end of significant. You were involved for a shorter period of time (January to March 2023), you were not involved with the earlier importations in 2021, or the cocaine offending, and you took directions from Mr S. Your expectation of financial gain was also less than Mr S.
[45] Cases involving the sentencing of multiple co-offenders are helpful in considering parity as between co-offenders. The sentencings of the co-offenders involved in the importation of 501 kilograms of methamphetamine following a meeting between two boats some 12 kilometres off the coast of Ahipara provide some guidance.22
[46] The Court of Appeal considered that a starting point of 25 years’ imprisonment was appropriate for Ms Fakaosilea’s offending because she had a lesser role than her co-offenders.23 (The High Court had adopted a starting point of 28 years’ imprisonment on the importation charge and she appealed to the Court of Appeal). She was involved for a shorter period of time, about a week in total. There was no evidence that she had a role in planning the importation, she took relatively few practical steps to assist in the importation, she was not present when either boat was launched or when the drugs were unloaded and there was no evidence that she knew the quantity was as great as it was. The Court nevertheless considered her role was important to the success of the operation. The Court of Appeal was satisfied that her role fell somewhere between “lesser” and “significant” as described in Zhang noting
22 R v Cullen [2019] NZHC 2088; R v Fakaosilea [2018] NZHC 3362; Fakaosilea v R [2021] NZCA 401; R v Tuilotolava [2017] NZHC 2621.
23 Fakaosilea v R, above n 22, at [92].
that “[a] starting point well in excess of 20 years was inevitable, given the massive quantity involved.”24
[47] I consider that your role was more significant than Ms Fakaosilea’s. You were involved for two months. You were involved in all aspects of the extraction and processing of the methamphetamine. I have also accepted that while you did not know the exact amount, you would have known that you were dealing with a significant quantity of methamphetamine.
[48][Redacted].25
[49] I agree with the Crown that your role is less significant than the lead offending in R v Cole,26 R v Thai,27 and R v Netzler,28 but more significant than the offending of Ms Fakaosilea in Fakaosilea v R.29 I will now also refer to the sentencing for Mr Te- Hira and Mr Thai.
[50] Mr Thai was sentenced for two charges of possessing methamphetamine for supply. In addition to the 469 kilograms of methamphetamine stored at one location, Mr Thai was in possession of over 26 kilograms of methamphetamine. The Court considered that Mr Thai was in the “trusted lieutenant” category of operator and not that of a leader. He did not take physical possession of the import nor was he involved in financing the operation. He arranged with freight-forwarders for the methamphetamine to be delivered to a rural address, purchased suitcases and took them to an apartment in central Auckland and discussed with his co-offenders about how to extract the methamphetamine from the motors. The Court adopted a starting point of 30 years’ imprisonment and then applying totality principles for the 26 kilograms of methamphetamine uplifted it to 33 years’ imprisonment.
24 Fakaosilea v R, above n 22, at [91]–[92].
25 Discussion regarding a sentence indication has been redacted in accordance with Criminal Procedure Act 2011, s 63.
26 R v Cole [2024] NZHC 3518.
27 R v Thai [2021] NZHC 1006.
28 R v Netzler [2021] NZHC 3321.
29 Fakaosilea v R, above n 22.
[51] Mr Thai’s co-offender, Mr Te-Hira, helped unload and store the electric motors. Police also located just over $33,000 in cash at Mr Te-Hira’s home. The Court assessed Mr Te-Hira’s engagement as fundamentally opportunistic and roughly equivalent to Mr Fakaosilea. The Court adopted a starting point of 28 years’ imprisonment for Mr Te-Hira.
[52] While large amounts of cash were not located in your possession, your role was more than simply unloading the pallets. You were involved for a period of two months so your role cannot be described as “opportunistic”. You attended the storage facility on multiple occasions, you were involved in all aspects of the extraction and processing. Your role is therefore comparable. The distinguishing factor is the amount of cash found with Mr Te-Hira, which is not present in your case.
[53] I do not propose discussing the cases regarding reckless knowledge or wilful blindness,30 as they are not comparable given my finding that you had actual knowledge.
[54] For these reasons, I consider that a starting point of 26 years’ imprisonment is consistent with comparable cases. I now consider the manslaughter offending.
Starting point for manslaughter
[55] First, there is no guideline case for manslaughter, given it can occur in a wide range of circumstances.31 I can be guided by cases with similar circumstances,32 but I acknowledge that here, the facts are not directly comparable and so in drawing comparisons, it is more helpful to identify the nature of the offending and the seriousness of the risk that the defendant took rather than the details.
[56] I must also take into account the information shared today by the family of Mr Sagala. You have heard the deep sorrow and anguish they have suffered. They have lost a favourite uncle, a caring son, a loving brother and a young man at the
30 Ms Priest referred to R v Soles [2014] NZHC 2665; Martin v R [2022] NZCA 285; and R v King
[2018] NZHC 2540 as comparable cases involving reckless knowledge.
31 Everett v R [2019] NZCA 68 at [24].
32 R v Leuta [2002] 1 NZLR 215 at [59].
beginning of his life. The family are devastated by that loss. You have heard and I am sure, have felt, the depth of that loss.
[57] The Crown argues that an appropriate starting point is five years’ imprisonment and your counsel agree.
[58] I accept that an aggravating factor relevant to your offending is that methamphetamine is dangerous. Possession of methamphetamine is unlawful.
[59] You obviously failed to check each can before you decided to give the trays of beer to Mr Sagala. That act was extremely reckless. While you did not know there was methamphetamine in the cans that you gave to Aiden, you took a life-threatening risk. You knew that the beer cans had come from a storage facility where you had helped to extract and process a significant quantity of methamphetamine. Mr Sagala had no idea of the origin of the beer or the circumstances in which you had come to have possession of the trays. You did.
[60] I also accept as aggravating, your breach of trust. Mr Sagala reported to you. He should have been able to trust that you were giving him beer and not methamphetamine. A young life has been lost and an aiga (family) has been left devastated, their lives forever impacted by their sorrow.
[61] There are no directly comparable cases but those cases involving firearms (an obviously dangerous instrument) and dangerous driving while under the influence of drugs are helpful in providing guidance. It is helpful for those present here today to hear the sentences that were provided so that they can understand the reason for the five year starting point. I will briefly refer to those cases:
(a)In R v Peters,33 Mr Peters did not check the thermal monocular (the telescope on a gun) despite knowing that he was hunting for possums in an area where others were also hunting. He was hunting without a gun licence and failed to perform basic gun safety practices when he told his son to take the shot without Mr Peters first checking. That shot
33 R v Peters [2024] NZHC 3743.
ultimately killed the victim. A starting point of four years imprisonment was adopted.34
(b)In R v Makoare,35 Mr Makoare caused a major car accident while driving high on methamphetamine. The conditions were rainy, he was speeding and attempted to overtake on a blind corner. His son died and another child was permanently paralysed. A starting point of seven years imprisonment was adopted in light of authorities on reckless driving and the other charges Mr Makoare faced.36
(c)In R v Appleton,37Mr Appleton and a friend went fishing at night while intoxicated. He was piloting the boat and it collided with rocks. He was travelling at a speed that was over four times the legal limit. A starting point of three years, nine months imprisonment was adopted.38
[62] It is apparent from the cases that the degree of risk taken by the defendant is relevant to setting the starting point. Where the activity is inherently dangerous, such as handling a gun, then that will be an aggravating factor. Here, giving trays of beer away in circumstances where you knew those trays were part of a larger importation of methamphetamine, where methamphetamine was concealed inside those trays, was extremely dangerous. The activity was also unlawful and involved serious offending.
[63] I accept, given the cases that have been referred to me, that five years’ imprisonment is an appropriate starting point for the manslaughter charge.
Adjusted starting point
[64] I now need to apply an uplift to the starting point for the methamphetamine offending to take account of totality. All counsel agree that an uplift of two years’ imprisonment is appropriate. I also agree that this reflects the totality of the overall offending and I therefore adjust the starting point to 28 years’ imprisonment.
34 At [38].
35 R v Makoare [2020] NZHC 2289.
36 At [19].
37 R v Appleton [2021] NZHC 80.
38 At [44].
Personal mitigating factors
[65] I accept that there are no aggravating personal factors. Your previous conviction is minor and not relevant.
[66] I have received a pre-sentence report, reports from Ms Visser (a clinical psychologist) and letters of support from your wife, community and work colleagues.
[67] You are 42 years old and were born and raised in Punjab India. You moved to New Zealand in 2004. You are part of the Sikh community. You attended university in India and undertook tertiary studies in New Zealand. You are married and have two children. Members of your extended family also live with you. You appear to have lived happily in your home in Manurewa at the time of the offending.
[68] Your counsel argue that the starting point should be reduced by 40 per cent (a ten per cent reduction for the impact of imprisonment on your children, ten per cent reduction for your previous good character, ten per cent reduction for your remorse and rehabilitative prospects, and ten percent reduction for the time you have spent on bail).
[69]I consider each factor in turn.
Impact of incarceration on children
[70] Your two children live at home with their mother and your extended family. I accept that you have a close relationship with them. They are aged six and nine years old.
[71] Your wife has written a letter in which she says caring for the children alone has been incredibly challenging. They miss you dearly and she says your absence causes them significant emotional distress. She is finding it difficult to manage their needs and worries about the children’s future.
[72] The Courts have recognised that imprisonment can have negative psychological impacts on children. The family situation and the wellbeing of the
children of convicted persons are relevant. In Philip v R,39 the Supreme Court stated the principles relevant to discounting a sentence to mitigate the effect of incarceration on a child. The weight to be given to this factor depends on the type of offending and the circumstances of the child or children.40 In that case, the Court agreed that a discrete discount was available given Mr Philip’s important presence in his young child’s life and the expert evidence about the child’s attachment. A ten per cent reduction was applied.
[73] In R v Sweeney a ten percent reduction was applied because the defendant was a solo stay at home father for his four and six year old children.41 On appeal, the Court considered it was an error not to apply a ten percent reduction. That then brought the sentence into the range where home detention was potentially available.
[74] In Ah Tong v R,42 the 11 year old child’s other parent was also imprisoned. Mr Ah Tong had been the sole caregiver. His child would have to go and live with someone unfamiliar so there was significant disruption to their life by his incarceration. A ten per cent reduction was applied.
[75] Your offending is very serious. The maximum penalty is life imprisonment. I accept that your children are young. They continue to live in your family home with their mother and extended family. Your incarceration will not require them to move house or live with someone unfamiliar, but I accept that they will suffer emotional distress. I also accept that there will be an impact by reason of you not being able to work and provide for them financially. While there is no psychological evidence as to the potential effect on your children I accept based on the letter written by your wife that there is emotional distress.
[76]In those circumstances I apply a reduction of ten per cent.
39 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
40 At [50].
41 Sweeney v R [2023] NZCA 417.
42 Ah Tong v R [2024] NZCA 144.
Previous good character
[77] Turning to your previous good character, the letters of support speak of your generosity and compassion and your caring nature. You have been willing to help others financially. They say you are kind and loyal. You do not have any previous history of drug offending. Were it not for the fact that I have found that you were not honest with the police, a reduction of 10 per cent may have been justified. In those circumstances, however, I consider that a reduction of no more than five per cent is appropriate. I therefore apply a five percent reduction for previous good character.
Remorse and rehabilitation
[78] I accept that you have shown remorse and have good prospects of rehabilitation provided you are willing to be truthful. The story you told the police was not believable and indicates that you are willing to hide your offending. I therefore consider that only a discrete discount for remorse and rehabilitative prospects is appropriate. I apply a reduction of five percent to the starting point.
Time spent on bail
[79] Your counsel argue that I should apply a ten per cent reduction to reflect the time you spent on bail simpliciter.
[80] The Court of Appeal in Kreegher v R noted that whether there should be a discount and the scale of it will depend on the restrictiveness of the bail conditions and the level of compliance with them.43 There, Mr Kreegher had been on bail simpliciter without breach for three years with a curfew from 7 pm to 7 am. A five per cent discount was considered appropriate.
[81] Ms Priest also referred to other cases, R v Aram, Davies v R and R v Alcock where discounts for time spent on bail were applied.44 A discount of 12 months’ imprisonment was applied to a starting point of 16 years’ imprisonment for Mr Aram’s
43 Kreegher v R [2021] NZCA 22 at [49].
44 R v Aram [2007] NZCA 328; Davies v R [2022] NZHC 437; and R v Alcock [2015] NZHC 984.
sentence. That is about eight per cent. He had been subject to “fairly restrictive” bail conditions for about 18 months.45
[82] The Court in Davies v R applied a discrete discount of approximately 8 per cent for seven months spent on a 24 hour curfew and 10 months on a restrictive curfew.46
[83]There is no formula, it is an evaluative exercise for the sentencing Judge.
[84] You were admitted to bail on 29 March 2023 with a curfew (6.45 pm to 8.30 am) so that you could continue your employment. On 6 April 2023, the High Court dismissed the appeal against the grant of bail and confirmed that you were subject to a 24/7 curfew with the exception that you be permitted to attend your employment between 8.30 am and 6.45 pm. When you ceased working at Fonterra on 21 September 2023, the Court granted a variation to allow you to attend job interviews. A further variation was granted on 25 January 2024 to allow you to attend the gym four days a week. You were remanded in custody at the end of the trial on 25 October 2024. You were therefore subject to bail conditions for approximately 19 months. You have complied with those conditions without breach.
[85] I consider that given the time you have been subject to bail and the nature of the restrictions which allowed you to work, then go to job interviews and go to the gym, only a five percent reduction is appropriate.
Adjusting the starting point
[86] With a starting point of 28 years’ imprisonment, I apply an overall reduction of 25 percent (ten per cent for the effect of incarceration on your children, five per cent for your previous good character, five per cent for remorse and rehabilitative prospects and five per cent for the time spent on bail simpliciter). I arrive at an end sentence of 21 years’ imprisonment.
45 R v Aram, above n 44, at [77].
46 Davies v R, above n 44, at [33]–[39].
Minimum period of imprisonment (MPI)
[87] Section 86(2) of the Sentencing Act provides that the court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for holding you accountable, denouncing your conduct, deterring you or others from similar offending and protecting the community.
[88] Given the quantity of methamphetamine involved and the fact that it was contained in beverages, in my view, deterrence of others is very important. You must have been aware that you were involved with a substantial quantity of methamphetamine. You were involved in all aspects of the extraction and processing of the methamphetamine. While I am satisfied that there is a low risk of you offending again, I consider that deterring others in the community from engaging in similar offending is very important. Further, it is important that you are held to account for the role you played in the methamphetamine offending and I am not satisfied that the parole period of seven years’ imprisonment is sufficient for the purposes of accountability, denunciation, and deterrence of others. I do not consider that your personal circumstances weigh against imposing a minimum period of imprisonment.
[89]I therefore impose an MPI of 10 years’ imprisonment.
End sentence
[90]Please stand Mr Kahlon:
(a)on the charge of possession of methamphetamine for supply, uplifted to reflect the additional charge of manslaughter, you are sentenced to 21 years’ imprisonment; and
(b)you must serve a minimum period of 10 years’ imprisonment.
[91]Stand down please Mr Kahlon.
Tahana J
4
20
0