Shaw v The King

[2025] NZHC 2264

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2025-406-000008

[2025] NZHC 2264

BETWEEN

BENJAMIN MITCHELL SHAW

Appellant

AND

THE KING

Respondent

Hearing:

30 July 2025

Counsel:

M Zintl for Appellant

J W N Cameron for Respondent

Judgment:

12 August 2025

JUDGMENT OF LA HOOD J

(Appeal against sentence)

[1]    Mr Shaw appeals a sentence of two years and six months’ imprisonment for class A (LSD), B (MDMA) and C (cannabis and ketamine) drug dealing offences.1 He contends that the sentencing judge gave insufficient credit for personal mitigating factors.2 If Mr Shaw’s submissions are accepted, an end sentence of home detention would be available, and he submits that such a sentence should be imposed.

1      Supplying MDMA, offering to supply MDMA, possession of MDMA for supply, possession of cannabis for sale, possession of LSD for supply, offering to supply LSD, offering to supply cannabis to persons under 18 years of age, offering to sell cannabis, and offering to supply ketamine.

2      R v Shaw [2025] NZDC 13893 [Decision under appeal].

SHAW v R [2025] NZHC 2264 [12 August 2025]

Background

Sentence indication

[2]    The offending occurred between August 2022–2023 when Mr Shaw was 20– 21 years of age. He was given a sentence indication on 7 November 2024, which he accepted. In giving the indication, Judge Mika summarised the offending as follows:3

(a)… between 21 and 24 August 2023, [Mr Shaw] placed MDMA into seven separate courier bags which were intercepted by New Zealand Post; a  total  of  110.83  grams  of  MDMA  was  found.  Then  on 24 August 2023, police searched [his] car and [his] home. In [his] car,

… police located 3.7 grams of MDMA, 80 grams of cannabis, and 150 tabs of LSD. At [his] home, police located 400 grams of MDMA, 38 grams of cannabis, and 30 tabs of LSD.

(b)Between September 2022 and April 2023, [he] offered to supply cannabis to three different young persons/children, aged 14, 15 and 17, on 30 separate occasions.

(c)Between December 2022 and February 2023, [he] offered to sell ketamine on three occasions.

(d)Between August 2022 and August 2023, [he] offered to sell cannabis to 131 people on 1,300 occasions.

(e)Between September 2022 and May 2023, [he] offered to sell MDMA to 16 people on 33 different occasions.

(f)Between February 2023 and August 2023, [he] offered to sell LSD to 16 people on 18 different occasions.

[3]    The prosecution summary of facts recorded Mr Shaw’s comments that, although the cannabis dealing was his own enterprise, he had been asked by a third party to sell the MDMA and LSD but had not profited from it. He said he was supposed to have been paid in crypto currency but had not been paid. The third party was Hunter Cooper, whose sentence appeal was dismissed by Grice J in March 2025.4

[4]    Judge Mika took the MDMA charges as the lead offending. Comparing the total quantity of MDMA seized (514.53 grams) with previous class B drug cases, the Judge adopted a starting point for those charges of four years’ imprisonment.5 The Judge did not apply an uplift for Mr Shaw’s two previous convictions (both for driving

3      R v Shaw CRI-2023-006-000795, 7 November 2024 [Sentence indication] at [3].

4      Cooper v R [2025] NZHC 710.

5      Sentence indication, above n 3, at [14].

offences),6 but uplifted the starting point for the balance of the offending (by nine months for the LSD (class A) offending, and six months for the cannabis and ketamine (class C charges).7 The Judge then reduced the starting point on the basis of totality by 12 months to take account of the fact Mr Shaw was not the principal offender.8

[5]    That left an adjusted starting point of four years and three months’ imprisonment.9 The Judge also indicated a guilty plea credit of 25 per cent if the sentence indication was accepted. Therefore, the sentence indication on all charges was three years and two months’ imprisonment subject to further reductions for other personal mitigation factors such as youth and background.10

Sentencing

[6]    At the sentencing on 19 June 2025, Judge Mika gave further credit for youth, addiction and time spent on bail totalling eight months.11 This resulted in an end sentence of two years and six months’ imprisonment.12

[7]    Mr Zintl, for Mr Shaw, submitted that a reduction of 15 per cent for Mr Shaw’s youth would be appropriate given his age at the time of the offending. However, the Judge accepted the Crown submission that Mr Shaw could not be considered an adolescent and that this was not one-off, impulsive offending, and only allowed a five per cent reduction.13

[8]    An alcohol and drug report assessed Mr Shaw as having methamphetamine and cannabis use disorders, and a report from a clinical psychologist stated that he has a severe cannabis addiction. On that basis, Mr Zintl sought a 10 per cent reduction for addiction. The Judge considered that Mr Shaw’s disorders and addiction were a

6 At [15].

7      At [16]–[17].

8 At [18].

9 At [19].

10     At [20]–[21].

11 Decision under appeal, above n 2, at [17].

12   At [17] and [20].  The sentence was imposed on seven of the charges, with a concurrent sentence of three months’ imprisonment for the offering to supply ketamine and offering to sell cannabis charges.

13 At [11].

motivation for part of his offending but noted the report writers’ conclusions that financial gain and perceived social kudos dominated Mr Shaw’s rationalisation of the offending.14 The Judge concluded that there was  “some  limited nexus”  between  Mr Shaw’s cannabis addiction and the cannabis offending, and allowed a five per cent reduction for addiction.15

[9]    Finally, the Judge considered Mr Shaw’s 22 months spent on bail, which included a night time curfew. He said that this was a significant length of time, but also noted that Mr Shaw had breached bail five times, as well as committing one offence of wilful damage while on bail (to the wall of the Blenheim Police Station custody unit).16 The Judge gave credit of three months for time spent on bail.17

Bail pending appeal

[10]   Shortly after the sentencing, Mr Shaw filed this appeal, and applied for bail pending appeal. Mr Shaw advanced similar arguments before Judge Rielly to those advanced in this appeal. On 4 July 2025, the Judge found that there was merit in the arguments of both parties as to the strength of this appeal, but bail should be granted given the appellant’s young age and good familial support.18

EM bail pending appeal

[11]   On 10 July 2025, Mr Shaw appeared before Judge Snell on an alleged breach of curfew, which he denied. As there was not time to determine that dispute before this appeal would be heard, the Judge imposed electronically monitored (EM) bail.19 Mr Shaw is therefore currently on EM bail pending this appeal.

Approach on appeal

[12]   Mr Shaw must establish that there was an error in the sentence reached and that a different sentence should have been imposed.20 Sentencing “is not a science”

14 At [13].

15     At [13]–[14].

16 At [15].

17 At [16].

18     R v Shaw [2025] NZDC 15470 at [29].

19     R v Shaw [2025] NZDC 14879 at [6]–[7].

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

and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer”.21 The court will not generally intervene unless a sentence is manifestly excessive22 and outside the range available to the sentencing judge.23 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.24

[13]   As I have previously said, the “well-engrained”25 error principle recognises that reasonable minds can differ about where an appropriate sentence should sit within an available range.26 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.27

Discussion

Youth

[14]   Mr Zintl submits that a reduction for youth of less than 10 per cent was inadequate. He notes that Judge Mika’s main reason for not granting a greater reduction was that this was not “one-off or impulsive offending”.28 I accept Mr Zintl’s submission that youth reductions are not limited to impulsive offending.29 However, in the case he cites for this general proposition, Uruamo v R, the Court also held that the particularly premeditated and serious offending (and history of offending) meant a youth discount was inappropriate.30 I accept Mr Zintl’s submission that youth reductions in the range of 10 to 30 per cent are common,31 but the question is whether a reduction of only five per cent has made the overall sentence manifestly excessive.

[15]   Mr Zintl emphasises that the pre-sentence report describes Mr Shaw as being “somewhat naïve” and that “he did not really think about the potential legal

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

22 At [35].

23 At [36].

24     At [30]–[36].

25     At [34]–[35].

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

27     Johnson v Police at [6]; and M v R at [9].

28     Decision under appeal, above n 2, at [11].

29     Uruamo v R [2023] NZCA 356 at [31].

30 At [32].

31     S v R [2024] NZCA 235 at [29].

consequences of his own actions”, and the alcohol and drug report records Mr Shaw’s description of the offending as “an opportunistic decision made by him without considering the possible consequences.”

[16]   Mr Shaw’s comments to the psychologist are also relevant. He said the offending was not really about money but because it made him feel important, and that he liked the “cool drug dealer” image. He said that he was enticed by the opulent lifestyle that social media influencers achieved with ease. The psychologist concluded that Mr Shaw did not stop to consider the consequences of his offending and the lure of the financial gains and perceived social kudos dominated his thinking. The report states that Mr Shaw endured a difficult family situation growing up because his father, his primary caregiver until mid-adolescence, allegedly responded to some of his aberrant and delinquent behaviours by making harsh criticism and calling him a “loser”. The report writer agreed with Mr Shaw’s mother that this likely deeply adversely impacted his self-worth. This led to a long-held belief that he was destined to fail in life and the positive feelings he derived from the offending compensated for those beliefs and gave him a sense of achievement and importance.

[17]    The question is not whether another Judge may have given a more generous reduction for youth, but whether the Judge’s approach was open to him. I consider there was clearly a nexus between Mr Shaw’s youth and his offending that required a reduction given he did not properly consider the consequences of his offending. But that must be tempered by his conscious choice to seek social status through offending over a lengthy period. There are many young people who endure harsh parental criticism who do not choose to engage in offending of this type. It was open to the Judge to take the view that this serious and premeditated drug dealing over the course of a year (including supplying cannabis to minors) meant a youth reduction at the low end of the range was appropriate.

Addiction

[18]   Mr Zintl says that there was at least a partial link between the offending and Mr Shaw’s cannabis addiction and submits that a 10 per cent reduction is appropriate. However, I accept the Crown submission that the Judge was right, based on Mr Shaw’s

own psychological report, to find that Mr Shaw’s MDMA offending was motivated by a desire for status and social kudos, with only a limited nexus to his cannabis addiction.32

[19]   In Berkland v R, the Supreme Court allowed a 10 per cent reduction for the role addiction and background played in the offending.33 Mr Berkland came from an 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.34

[20]   By comparison, I see no error in the Judge’s conclusion that Mr Shaw’s considerably less compelling background circumstances and addiction did not warrant the same 10 per cent reduction. Another Judge may have been more generous, but that does not mean the approach taken by this Judge was not open to him.

Prospects of rehabilitation

[21]   Mr Zintl submits that the Judge was wrong not to allow some further reduction for prospects of rehabilitation.35     He notes the reports, as  well as  a letter from     Mr Shaw’s mother, indicate he has made good progress. Mr Shaw has set the goal of addressing his cannabis addiction, expressed considerable regret and remorse for the offending, and planned to open a firewood business.

[22]   The problem for Mr Shaw is that despite his stated intentions, he has not undertaken, or taken any steps to initiate, any drug or other rehabilitation programmes or interventions during his time on bail. I have been told there was a bail condition put in place to allow him access to medicinal cannabis to wean himself off his addiction. However, he has not sought the professional assistance required to achieve this outcome.

32     Decision under appeal, above n 2, at [13].

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

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

35     Royal v R [2020] NZCA 129 at [25]–[26]; Moheebi v R [2020] NZCA 343 at [29]–[31]; and Clark

v R [2020] NZCA 641 at [25].

[23]   This can be contrasted with the genuinely exceptional rehabilitative steps taken by Mr Berkland, which warranted a 10 per cent reduction.36     I also do not find     Mr Zintl’s comparison with the reduction provided for Mr Cooper’s equivalent personal mitigating factors compelling. On appeal, Grice J considered Mr Cooper’s 10 per cent reduction for youth and good character was appropriate. He was slightly older (at 22) but unlike Mr Shaw he did not have any adult or youth offending history. Mr Cooper was given a 15 per cent reduction for background factors (including addiction) but, unlike Mr Shaw, Mr Cooper’s background included sexual abuse. Grice J said that “[w]hile the reduction may have been generous in the circumstances, it was within range”.37

[24]   I accept the Crown submission, citing McCaslin-Whitehead v R,38 that 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. The question here is whether the overall reduction for personal mitigation factors of 10 per cent was clearly inadequate. For the reasons given, I consider that this level of reduction was likely at the bottom of the available range but not clearly inadequate. It was open to the Judge to not give a separate reduction for prospects of rehabilitation.

Time on bail

[25]   Mr Shaw was on bail with restrictive conditions from August 2023 to the sentencing in June 2025, which included a nighttime curfew. Mr Zintl says that 22 months on such restrictive bail conditions would be challenging for any young person and the breaches were mostly minor curfew breaches. Mr Zintl acknowledges that a wilful damage charge arose when Mr Shaw was arrested for breaching his bail by doing “minor damage to paint work in the cells”, but notes that there was no drug dealing offending on bail. In those circumstances, Mr Zintl submits that three months’ reduction was insufficient, and reduction of six months was appropriate.

36     Berkland v R, above n 33, at [16(d)(i)] and [162(b)].

37     Cooper v R, above n 4, at [47].

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

[26]   The Crown submits that Mr Shaw has a poor record of compliance with his bail conditions, with repetitive and consistent breaches, noting that a final warning for repeated breaches was given on 25 September 2023, yet four further proven breaches occurred. The Crown also notes Mr Shaw’s unresolved alleged breach on 10 July 2025, while on bail pending appeal.

[27]   I accept the Crown submission that any reduction for time spent on bail should be informed by the level of restriction and the level of compliance. While the Sentencing Act 2002 only identifies time spent on EM bail as a mandatory mitigating factor at sentencing,39 credit is available for time on bail that is not electronically monitored, particularly where the bail conditions were restrictive enough to be comparable to time remanded in custody, such as a 24-hour curfew.40 Credit can be given for long periods spent on bail with a nighttime curfew, but that will generally require strong compliance.41

[28]   Given Mr Shaw’s poor compliance with bail conditions, I consider the three- month reduction was generous and no further reduction is required. For this reason, I also consider his short time on EM bail pending appeal does not require further reduction to his sentence.

Conclusion

[29]    The Court is required to stand back and consider whether the overall reduction for personal mitigating features has led to an end sentence that is disproportionate to the gravity of the offending.42 In reaching the conclusion that the end sentence was not manifestly excessive in Uruamo, the Court took into account that the uplifts for other offending and personal aggravating factors could have been higher.43

39 Sentencing Act 2002, s 9(2)(h).

40 See Tuarae v R [2023] NZCA 229 at [26]; R v Nepe [2008] NZCA 98 at [33]; and Bennett v R

[2021] NZCA 173 at [25].

41 See, for example, Kreegher v R [2021] NZCA 22 at [49] (six months’ credit for three years subject to curfew); St John v R [2025] NZHC 602 at [23]–[25] (three months’ credit for two years and five months subject to curfew); and R v Kimber [2025] NZHC 1906 at [51] (one month’s credit for one year and seven months subject to curfew).

42 McCaslin-Whitehead v R, above n 38, at [61].

43 Uruamo v R, above n 29, at [37]–[40].

[30]   The overall starting point of 51 months’ imprisonment was generous and could have been higher. The four-year starting point for the MDMA offending appears appropriate but the total uplift of three months for the remainder of the offending was very generous. The LSD offending was serious, and the cannabis offending was prolific and involved sale to minors. The Crown submitted at the sentence indication that the LSD offending in isolation could warrant a starting point of three years and six months’ imprisonment, and that an uplift of one year was appropriate. The Crown also sought a further uplift of six months for the class C offending.

[31]   The Judge largely adopted the Crown submissions by taking an overall starting point of five years and three months’ imprisonment, but then made a further totality adjustment of 19 per cent to take account of Mr Shaw’s role.44 However, the starting point of four years on the MDMA charges already took Mr Shaw’s role into account, as did the uplifts for the other offending. I consider an overall staring point, adjusted for totality, of anything less than five years was generous.45

[32]   Standing back, I consider the end sentence was not manifestly excessive. While another Judge may have taken a more generous approach to the overall reduction for personal mitigating factors, the approach the Judge took was open to him. But even if I am wrong about this, the Judge’s generous approach to the starting point means the sentence was not outside the available range.

[33]I therefore dismiss the appeal.

[34]   Mr Shaw must surrender himself to prison as directed by the Department of Corrections within 48 hours of the release of this judgment to complete the sentence of imprisonment imposed by Judge Mika.

La Hood J

Solicitors:
Crown Solicitor, Nelson for Respondent

44     Sentence indication, above n 3, at [18].

45     For the MDMA offending, see R v Ingram [2018] NZCA 252, [2018] 3 NZLR 783 at [84]. For the LSD offending, see Wilson v R [2017] NZCA 342 and R v Edwards [2009] NZCA 269.