William Allan Berkland v R

• Jurisdiction: New Zealand
• Judge: Winkelmann CJ,William Young,Glazebrook,Williams JJ,Williams J
• Judgment Date: 07 December 2022
• Neutral Citation: [2022] NZSC 143
• Docket Number: SC 40/2020
• Court: Supreme Court

Between

William Allan Berkland

Appellant

and

The King

Respondent

Between

Brownie Joseph Harding

Appellant

and

The King

Respondent

[2022] NZSC 143

Court:

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

SC 40/2020

SC 64/2020

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

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

The issues were: how should culpability be assessed; whether the Zhang role criteria applied to setting the starting point to ensure that all facts relevant to culpability were appropriately considered and whether greater discounts should have been given for background factors.

The Court held culpability must be assessed on the facts of the particular case not the offence category. For H, the Court accepted that, on the facts, the complexity of his manufacturing operation was greater than that which might be expected in importation or supply of the same quantity, but the offending was not “within the most serious of cases” of commercial methamphetamine dealing in terms of s8(c) SA. The Courts below had overestimated Mr Harding's culpability rendering his overall starting point excessive

Zhang's profile for the “significant” role should be adjusted to ensure that, alongside other relevant considerations, sentencing courts reflect on the distinction between operational and management functions within the significant category. B's role was not located at the upper end of Zhang's “significant” profile. While he was a right-hand man, B had not exercised significant autonomy, had no decision-making authority and had not managed others. His role was properly located in the mid-range of the significant category.

Background factors such as deprivation, historical dispossession and addiction are important considerations for sentencing at all levels of seriousness. These factors are likely to mitigate sentence where they contribute causatively to the offending

B received a 10 percent discount for relevant background factors including his addiction, history of deprivation and trauma and a further 10 percent discount for his rehabilitation efforts. That aspect of B's background was genuinely exceptional and warranted a significant sentencing response despite the gravity of the offending

H's background had not causatively contributed to the scale and extent of his offending and therefore had not warranted any discount.

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

• 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

...