William Allan Berkland v R

JurisdictionNew Zealand
JudgeWinkelmann CJ,William Young,Glazebrook,Williams JJ,Williams J
Judgment Date07 December 2022
Neutral Citation[2022] NZSC 143
Docket NumberSC 40/2020
CourtSupreme Court

[2022] NZSC 143

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

Court:

Winkelmann CJ, William Young, Glazebrook, Ellen France and Williams JJ

SC 40/2020

SC 64/2020

Between
William Allan Berkland
Appellant
and
The King
Respondent
Between
Brownie Joseph Harding
Appellant
and
The King
Respondent
Counsel:

L C Ord and E T Blincoe for Appellant SC 40/2020

R N Park for Appellant SC 64/2020

S K Barr and A J Ewing for Respondent in SC 40/2020 and SC 64/2020

C P Merrick, K Snelgar and J R Spelman for Te Hunga Rōia Māori o Aotearoa | The Māori Law Society as Intervener

Criminal Sentencing — appeal s against sentences imposed for methamphetamine offending — significance of roles in offending — implementation of new sentencing framework from guideline judgment R v Zhang [2019] NZCA 507 — assessing culpability — relevant of personal background factors causative of the offending

  • A Mr Berkland's appeal in SC 40/2020 is allowed. His sentence of 12 years and nine months' imprisonment, together with a 50 per cent MPI, is quashed, and a sentence of eight years and eight months' imprisonment is substituted.

  • B Mr Harding's appeal in SC 64/2020 is allowed. His sentence of 28 and a half years is quashed, and a new sentence of 21 years is substituted. There is no adjustment to the MPI.

JUDGMENT OF THE COURT
REASONS

Winkelmann CJ, William Young, Glazebrook and Williams JJ

[1]

Ellen France J

[197]

Winkelmann CJ, William Young, Glazebrook and Williams JJ (Given by Williams J)

Table of Contents

Para No

A INTRODUCTION

[1]

The appeals in brief

[3]

The Berkland appeal

[3]

The Harding appeal

[9]

Issues

[16]

Sentencing purposes, principles and guidelines

[19]

Drug offending

[25]

Misuse of Drugs Act 1975

[25]

Zhang

[28]

B THE RELEVANCE OF OFFENCE CATEGORY TO

STARTING POINT IN THE HARDING APPEAL

[42]

Submissions

[42]

Analysis

[44]

C THE EFFECT OF ROLE ON STARTING POINTS IN THE

BERKLAND APPEAL

[55]

The Court of Appeal

[57]

Submissions

[59]

Role as an important component in starting points for commercial dealing

[62]

Effect of this part of the judgment

[72]

Application

[73]

Conclusion

[79]

D THE EFFECT OF OFFENDER BACKGROUND IN

SENTENCING FOR COMMERCIAL DEALING

[81]

Submissions

[82]

The importance of offender background

[89]

Background and commercial dealing

[95]

What is the required degree of connection between background and the offending?

[97]

Canadian and Australian approaches

[101]

Our view: the causative contribution of background

[107]

Para No

The causative contribution of deprivation, historical dispossession and addiction

[113]

Deprivation

[114]

Historical dispossession

[122]

Addiction

[127]

The tools at the Court's disposal to elucidate relevant background information

[130]

Section 25

[132]

Section 26

[134]

Section 27

[135]

Purposes and principles

[136]

Community

[140]

Form and content

[141]

A caution

[145]

E APPLICATION TO MR BERKLAND'S BACKGROUND

[148]

The Courts below and submissions

[148]

Our view on background

[151]

Rehabilitation and character

[159]

Mr Berkland's final sentence

[162]

F APPLICATION TO MR HARDING

[164]

The Courts below

[164]

Submissions

[167]

Should the s 27 report be admitted?

[174]

Should Mr Harding's background factors have affected his sentence?

[176]

Mr Harding's end sentence

[192]

G RELEVANCE OF BACKGROUND TO MPIs

[193]

H DISPOSITION

[195]

A INTRODUCTION
1

In Zhang v R the Court of Appeal recalibrated New Zealand's approach to sentencing for methamphetamine-related offending. 1 It broadened sentencing discretion in two ways relevant to this appeal. First, it removed the purely category-based distinction in sentencing between manufacture, importation and supply of methamphetamine. Sentencing is to be focused instead on the particular role of the offender in the offending. This was done by introducing new role categories (“leading”, “significant” and “lesser”) to capture the role-related culpability inherent in the offending.

Second, and subject to this Court's decision in R v Jarden, 2 the Court signalled that personal circumstances may be relevant across the entire spectrum of methamphetamine-related sentencing
2

These two appeals by William Berkland and Brownie Harding raise important issues for the implementation of that new framework and for sentencing more generally.

The appeals in brief
The Berkland appeal
3

Following the termination of “Operation Walnut” in April 2017, Mr Berkland (a patched member of the Porirua chapter of the Mongrel Mob) pleaded guilty to charges relating to his role in a significant methamphetamine supply operation together with ancillary charges relating to possession of weapons and his own retail supply of other drugs. The methamphetamine supply operation was led by Mr Berkland's principal, Steven Blance (also a patched member of the Porirua Mongrel Mob). It was established that during the investigation period, they purchased at least 15 kilograms of methamphetamine for on-supply and supplied an estimated average of approximately one kilogram of methamphetamine per week to drug retailers in the Wellington region. Total profit for this slice of the operation was estimated at approximately $1.6 million.

4

In the High Court, Collins J described Mr Blance as the “mastermind” 3 of the operation and Mr Berkland as his “right-hand man”. 4 The starting point for Mr Blance was 18 years. 5 The starting point for Mr Berkland was 16 years and six months, to which was added a one year uplift for his ancillary firearms and supply offending. His end sentence of 13 years and three months reflected discounts for an early guilty plea and a six month allowance for personal background factors such as his methamphetamine addiction. 6 A minimum period of imprisonment (MPI) of six years and six months was imposed.

5

When it decided Mr Berkland's appeal against sentence, the Court of Appeal applied the new role categories introduced in Zhang 7 (which was decided after Mr Berkland was sentenced). 8 The Court described Mr Blance's role in the methamphetamine operation as “leading” and that of Mr Berkland as at the upper end of “significant”. This role combined with the quantity of methamphetamine involved indicated that the High Court's starting point of 16 and a half years' imprisonment was within range. Moreover, the Court accepted the limited differentiation between starting points adopted by the sentencing Judge for Messrs Blance (who did not appeal) and Berkland may have been on the low side but said it did not warrant reduction of Mr Berkland's sentence given the high threshold for disparity arguments and view that Mr Blance's sentence was low under Zhang.

6

Finally, the Court rejected the argument that a greater discount should have been given for Mr Berkland's personal factors. They were not an “operative cause” of his offending in light of its scale and commerciality (including retailing multiple drugs), and the fact that his derived income was above subsistence level. 9 Nevertheless, the Court accepted that due to an administrative oversight, certain further background information filed in the High Court by Mr Berkland had not been brought to the attention of the sentencing Judge. This information warranted a further modest discount. The Court of Appeal allowed the appeal in that limited respect only, and reduced the sentence by a further six months to 12 years and nine months on account of the additional factors raised in that material. 10

7

This Court granted general leave to appeal, but noted the following in our leave judgment: 11

[1] While the approved question is general, the Court is particularly interested in hearing from the parties in relation to the following issues:

(a) whether, given the more limited role attributed to Mr Berkland by the Court of Appeal (compared to that of his co-offender), sufficient weight was placed on that factor in setting the starting point;

(b) whether the Court of Appeal applied the correct approach to personal mitigating circumstances in relation to Mr Berkland, and in particular in requiring a causal link between his addiction or history of deprivation and the offending; and

(c) whether the Court of Appeal was correct to uphold the imposition of a minimum period of imprisonment.

[2] It will be clear from the foregoing that it is not intended that this appeal should proceed as a wholesale re-litigation of the Court of Appeal's guideline judgment in Zhang v R.

8

Mr Berkland broadly advances three arguments. First, he says that for various reasons the Court of Appeal overstated the significance of his role, particularly in light of the differentiation between him and Mr Blance. Properly characterised, he claims he was at the lesser end of significant and a starting point of between 13 and 14 and a half years should have been adopted. Second, he argues the Court of Appeal erred in principle by allowing only token discounts for personal factors due to the commercial scale of the operation and the need to show a causative link between such factors and the offending. Instead, he says a discount should be given where personal factors contribute to the offending. Mr Berkland's final argument is that in light of his personal circumstances, an MPI could not be justified.

The Harding appeal
9

Mr Harding pleaded guilty to 11 charges relating to the manufacture and distribution of methamphetamine following the termination of “Operation Easter”. 12 The six separate manufactures in respect of which the...

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