SIMPSON & HOWE v R [2023] NZCA 202

SIMPSON & HOWE v R [2023] NZCA 202 [1 June 2023]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF MR A PURSUANT TOS 202 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL HE ISSENTENCED ON THE CHARGES TO WHICH THE SENTENCINGINDICATION REFERRED TO AT [45] AND [50] RELATES.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA447/2022[2023] NZCA 202BETWEEN CALEBH SIMPSONAppellantAND THE KINGRespondentCA18/2023BETWEEN BENJAMIN DAVID HOWEAppellantAND THE KINGRespondentHearing: 30 March 2023Court: French, Dunningham and Cull JJCounsel: P K Hamlin for Appellant in CA447/2022J J Rhodes for Appellant in CA18/2023J A A Mara for RespondentJudgment: 1 June 2023 at 2.15 pmJUDGMENT OF THE COURTA The appeals are dismissed.B To avoid prejudicing Mr A's fair trial rights, we make an order pursuant tos 202 of the Criminal Procedure Act 2011 prohibiting publication of his name,address, occupation or identifying particulars until he is sentenced on thecharges to which the sentencing indication referred to at [45] and [50] relates.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] The appellants were charged with methamphetamine-related offendingfollowing a police investigation known as Operation Emoji. Both appellants enteredguilty pleas on the same day but were sentenced by different judges on different dates.Mr Calebh Simpson was sentenced by Lang J to 12 years' imprisonment with aminimum period of imprisonment (MPI) of five years.1 Mr Benjamin Howe wassentenced by Moore J to six years and seven months' imprisonment with no MPI.2[2] Mr Simpson appeals his sentence on the grounds that:3(a) the Judge should not have imposed an MPI;(b) the discounts for personal mitigating factors and guilty pleas were toolow; and(c) the Judge erred in calculating the discount for mental health andaddiction issues.[3] Mr Howe appeals his sentence on the grounds that:(a) the starting point was too high having regard to his role and theprinciple of parity with co-offenders;(b) the uplift for the additional firearm charges was too great;(c) the discount for his guilty pleas was too low when his co-offender,Mr Simpson, was granted a 22.5 per cent discount;(d) the discount for addiction was too low; and1 R v Simpson [2022] NZHC 1902 [Sentencing notes (Simpson)] at [70].2 R v Howe [2022] NZHC 3357 [Sentencing notes (Howe)] at [64].3 An additional ground of appeal, namely that the uplift applied for the charges for possession ofprecursors, equipment and materials was too high, was not pursued before us, and we do notaddress it.(e) the discount for remorse and rehabilitative efforts should have beengreater.Background[4] On 10 April 2019, Mr Simpson's vehicle was stopped in South Auckland. Asa result of a search of that vehicle, Mr Simpson was found in possession of 293 gramsof methamphetamine, roughly $3,000 in cash, and drug paraphernalia along with acut-down, .30 calibre, military style semi-automatic weapon, a shotgun stock andammunition. He was, in due course, released on electronically-monitored (EM) bailto his address in Whakatane.[5] On 13 February 2020, the Police executed a search warrant at Mr Simpson'shome in Whakatane. They located a large quantity of equipment, precursor substancesand materials which indicated he was operating a laboratory for the manufacture ofmethamphetamine. It was assessed that the equipment present at Mr Simpson'saddress was capable of manufacturing up to five kilograms of methamphetamine in asingle "cook".[6] Analysis of the CCTV system found at the address showed Mr Simpson andothers had been engaged in manufacturing methamphetamine on an ongoing basisbetween May 2019 and February 2021.[7] Also found at the address was approximately 625 grams of methamphetamine,over $160,000 in cash, four one ounce gold bars, two rings, one of which had avaluation certificate ascribing it a value of $136,000, 1.2 kilograms of cannabis andseveral firearms, including a prohibited military style semi-automatic weapon andammunition. As a result of what was found in Mr Simpson's possession, he wascharged with several charges relating to the possession, manufacture and supply ofmethamphetamine and cannabis. He was also charged with a number of firearmoffences.[8] When Mr Simpson was arrested, he was in possession of an iPhone and, in hisbedroom, two further cell phones were located. As a result of analysing call data, textdata and text-message content, Mr Simpson was also charged with three charges ofsupplying methamphetamine.[9] After Mr Simpson was remanded in custody in February 2020, the policebecame aware that he was still in control of cash totalling more than $1.5 million andhad involved family members and associates in hiding funds which were the proceedsof his criminal offending. This was initially concealed in two suitcases, which werehidden in a hydraulically operated compartment under his bed. Mr Simpson arrangedfor his father to uplift the suitcases, and these were subsequently held by Mr Simpson'sfather and his partner. Mr Simpson then arranged for his mother and partner to usethe cash from the suitcases for various purposes while he was in prison. They wereboth charged with money laundering as a result of those activities.[10] After a further search warrant was executed at Mr Simpson's address on9 April 2022, an additional sum of $77,860 was found. Mr Simpson had entrusted thismoney to his father for safe keeping. The discovery led to a further charge of moneylaundering arose in respect of this.[11] Following a disputed facts hearing held at the commencement of sentencingregarding ownership of the cash in the two suitcases, Lang J held that on either of theparties' accounts, all the cash in the suitcases represented the proceeds of the sale ofdrugs Mr Simpson had manufactured.4 Although on Mr Simpson's version of events,part of the amount was proceeds which were to be paid to gangs, Lang J neverthelessconcluded that Mr Simpson remained "in exclusive control and possession over atleast $700,000 in cash", saying this meant Mr Simpson "derived significant profitsfrom [his] offending and not all of it went to gangs".5[12] Mr Simpson pleaded guilty to the following offences:(a) manufacturing methamphetamine;(b) supply of methamphetamine;4 Sentencing notes (Simpson), above n 1, at [23].5 At [23] and [26].(c) possession of methamphetamine for supply (x2);(d) possession of precursor substances with intent to manufacture;(e) possession of equipment with intent to manufacture;(f) possession of material with intent to manufacture;(g) possession of cannabis for supply;(h) unlawful possession of firearms;(i) unlawful possession of explosives (ammunition); and(j) engaging in money laundering.[13] Mr Howe was a friend or associate of Mr Simpson and others involved in theOperation Emoji offending. Mr Howe acted as a delivery driver for Mr Simpson whenMr Simpson was on EM bail and transported methamphetamine that wasmanufactured in Whakatane to Auckland for sale.[14] A search warrant was conducted at Mr Howe's parents' address whereMr Howe lived. In the house, police found a loaded .44 calibre pistol along with over50 rounds of ammunition. In Mr Howe's bedroom, 171 grams of methamphetaminewas located within a safe alongside snaplock bags, three rounds of ammunition, anddrug utensils. The bedroom also contained a jar with 29 grams of cannabis. InMr Howe's vehicle, police found 5.7 grams of methamphetamine, $10,108.50 in cash,weighing scales and drug utensils.[15] Mr Howe pleaded guilty to the following offences:(a) manufacturing methamphetamine;(b) possession of methamphetamine for the purpose of supply;(c) unlawful possession of a firearm;(d) unlawful possession of explosives (ammunition);(e) possession of cannabis; and(f) possession of a pipe for the use of methamphetamine.Mr Simpson's appealThe sentencing decision[16] Mr Simpson was sentenced on 5 August 2022 by Lang J. The Judge noted thatMr Simpson was being sentenced in relation to the charges arising out of the vehiclesearch (the Manukau charges) and the charges arising out of the search of hisWhakatane address (the Whakatane charges). He proceeded on the basis that theWhakatane charges were the most serious.6 They involved the manufacture of at leasteight kilograms of methamphetamine between June 2019 and February 2020, and theJudge concluded that this placed Mr Simpson firmly in band five of the guidelinejudgment, Zhang v R.7 In terms of the role he played, the Judge consideredMr Simpson had a leading role, saying he was in charge of all aspects of themethamphetamine manufacturing operation and also played a considerable role indistributing the product to others. He also received a significant part of the profits forhis own use. The Judge considered a starting point of 14 years' imprisonment wasappropriate to reflect his role in the manufacturing and distribution network.8[17] The Judge then applied a two-year uplift for the large quantities of equipment,precursor substances and materials found at his address, and a further uplift oftwo years for the firearms-related offending.9 There was no uplift for the cannabis ormoney laundering offending.10 The Judge, therefore, reached an overall starting pointfor the Whakatane charges of 18 years' imprisonment.116 At [28].7 At [29]–[30], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.8 At [31].9 At [32] and [34].10 At [33] and [35].11 At [36].[18] In respect of the Manukau charges, the Judge described these as a "one-off"event in which Mr Simpson was caught in possession of 293 grams ofmethamphetamine together with other paraphernalia suggesting drug-dealing activityat a retail level (though the offending was aggravated by the presence of firearms).12This quantity of methamphetamine placed Mr Simpson in band three of Zhang,attracting a starting point of between six and 12 years' imprisonment.13 However, theJudge considered the facts suggested Mr Simpson was at a retail level in adrug-distribution network, and he would characterise Mr Simpson's involvement as a"lesser" role.14 While on a standalone basis, the Judge considered these charges wouldattract a starting point of around six years' imprisonment, applying totality principleshe considered an uplift of two years to be appropriate to reflect all the Manukaucharges, which resulted in an final starting point of 20 years' imprisonment.15[19] No uplifts were applied for Mr Simpson's previous convictions (which wereunrelated) or for offending while on EM bail, although the Judge noted the latter pointwould factor into his decision on whether to impose an MPI.16 The Judge granted adiscount of 22.5 per cent for guilty pleas on both sets of charges, saying that whilethese came late in the piece, "considerable background work needed to be done by youand your counsel to reach resolution with the Crown regarding several issues inrelation to the Whakatane charges".17 The Judge also noted the pandemic made itmore difficult for counsel to take instructions from clients like Mr Simpson, who werein prison. In respect of the Manukau charges, he said guilty pleas were entered shortlyafter the Court of Appeal upheld the admissibility of the evidence obtained during thesearch of the vehicle.18 While the Crown contended Mr Simpson should receive adiscount of 15 per cent "to reflect the approach taken in relation to other defendants",the Judge said that his guilty pleas "saved the cost of what would have been a verylengthy jury trial".19 He afforded a credit of four years, six months to reflectMr Simpson's pleas on both sets of charges.2012 At [37] and [39].13 At [38], citing Zhang v R, above n 7.14 At [39].15 At [43].16 At [44]–[45].17 At [46].18 At [46].19 At [47].20 At [47].[20] The Judge then turned to the report prepared by a psychiatrist, together with as 27 cultural report.21 The psychiatric report pointed to Mr Simpson suffering frommethamphetamine use disorder, bipolar disorder, paranoid personality disorder andcomplex bereavement disorder following the death of his brother. He usedmethamphetamine as a way of dealing with depression, and he initially began dealingin methamphetamine to pay for his drug habit. The Judge concluded that his mentalhealth issues were likely to have contributed to the downward spiral that ledMr Simpson to commit the present offences and would make it more difficult for himto serve his prison sentence. He concluded by saying: "I propose to make an allowanceof two years six months, or slightly under 15 per cent, to reflect the combined effectof your mental health and addiction issues".22 The Judge then also gave an additionaldiscount of five per cent to reflect remorse and to encourage rehabilitative efforts,although noting Mr Simpson's remorse "came very late".23 The final sentence was12 years' imprisonment.24[21] The Judge then considered whether to impose an MPI. After remindinghimself of the observations made in Zhang regarding MPIs, the Judge consideredwhether it was appropriate that Mr Simpson be eligible for parole after serving fouryears of his sentence, as would automatically follow in the absence of an MPI. TheJudge observed that Mr Simpson became involved in manufacturing and dealingmethamphetamine in a major way soon after being released on EM bail on otherserious drug charges, and he produced significant quantities of methamphetamine andderived substantial profits from doing so.25 In the end, the Judge concluded that thesentencing principles of deterrence and denunciation, and the need to holdMr Simpson responsible, were all engaged in this case. However, while he wouldhave normally imposed an MPI of 50 per cent of the sentence, in light of Mr Simpson'saddiction and associated mental health issues the Judge imposed an MPI of five years,or just over 40 per cent of the sentence.2621 At [48]–[57].22 At [54].23 At [56].24 At [57].25 At [59] and [61], citing Zhang v R, above n 7.26 At [63]–[64].Did the Judge err in imposing an MPI?[22] In support of the first ground of appeal, Mr Hamlin refers to Zhang v R, wherethe Court of Appeal said the following about imposing MPIs:27[169] As this Court has emphasised in other decisions, minimum periods ofimprisonment must not be imposed as a matter of routine or in a mechanisticway. It is not sufficient for a judge simply to recite s 86 without more. Areasoned analysis is required, both as regards the imposition of a minimumperiod of imprisonment and its length. [23] In this case, Mr Hamlin submits that the Judge erred by failing to apply thestatutory criteria to the particular facts of the case. In terms of accountability, a lengthyperiod of imprisonment was inevitable in this case, and that itself, in Mr Hamlin'ssubmission, was sufficient to hold the defendant accountable. Furthermore, there wasnothing to support the contrary proposition, being that the ordinary non-parole periodwould be insufficient to hold the defendant accountable. Similarly, in terms ofdenunciation, the lengthy sentence of imprisonment was sufficient to achieve thispurpose. Regarding deterrence, Mr Hamlin argues there was no specific need fordeterrence in his case. Addiction and mental health issues were causative of theoffending, and Mr Simpson is determined to address those issues. The principle ofgeneral deterrence did not justify an MPI as there is already a general awareness in thecommunity that a conviction for drug offending will be met with a stern response.Finally, in terms of protection of the community, that is a matter best left to theParole Board, which is bound by statute not to release the appellant unless the risk heposes is not undue.[24] Furthermore, in Mr Hamlin's submission, the imposition of an MPI may welldelay Mr Simpson's participation in relevant rehabilitation courses, and it providesless incentive for him to engage in rehabilitation. Given that Mr Simpson hasconsiderable insight into his offending, does not have a history of drug-relatedoffending, and is supported by his mother, an MPI was said to be not required. In anyevent, the five year MPI is only one year more than what he would have served withoutit and therefore is unnecessary.27 Zhang v R, above n 7.[25] Finally, Mr Hamlin says the principle of consistency with a co-defendantsupports the removal of the MPI. Mr Simpson's co-defendant, Mr Howe, did notreceive an MPI as part of his sentence. While Mr Hamlin acknowledges their differentroles, Mr Howe was depicted as the "right hand man" of Mr Simpson and, given thesimilarity of the offending and the common circumstances, Mr Simpson also shouldnot have had an MPI imposed.Discussion[26] In our view, the criticisms of the Judge's approach to imposing an MPI cannotbe sustained. The Judge was clearly aware of this Court's observations in Zhang,having set them out in his sentencing decision and in our view he applied them.Mr Simpson's willingness to become involved in manufacturing and dealingmethamphetamine soon after he was released on EM bail on other serious drugcharges, and to do so for significant financial gain, pointed to the need to prioritisedeterrence, denunciation, and holding Mr Simpson responsible. However, the Judgebalanced those sentencing principles with consideration of mitigating factors,including Mr Simpson's addiction and associated mental health issues, and imposed alower MPI than he otherwise would have. We are satisfied the Judge did not imposean MPI in a routine or mechanistic way, but carefully balanced the sentencingprinciples at play in Mr Simpson's particular circumstances.[27] We also see nothing in the fact that an MPI was not imposed on Mr Howe.While Mr Howe assisted Mr Simpson, the scale of his offending was quite different.This is clearly demonstrated by the fact Mr Simpson's role was categorised as"leading", whereas Mr Howe's was categorised as at the lower end of "significant".28As Moore J explained when sentencing Mr Howe: "[Mr Simpson] was the ringleader.You were not."29 There were clear reasons for distinguishing Mr Howe fromMr Simpson and for coming to different conclusions on the issue of whether an MPIshould be imposed.[28] This ground of appeal is dismissed.28 Sentencing notes (Simpson), above n 1, at [31]; and Sentencing notes (Howe), above n 2, at [19].29 Sentencing notes (Howe), above n 2, at [24].Did the Judge apply sufficient discounts for background factors?[29] Mr Hamlin argues that Mr Simpson's personal circumstances, including hismethamphetamine addiction which began after the suicide of his brother, along withhis mental health issues outlined in the psychiatrist's report, had a causative link toMr Simpson's offending, and a 20 to 30 per cent discount for these factors wasappropriate. He adds that Mr Simpson's disconnection from his Māori culture as aresult of the effects of historical dispossession and systemic deprivation were not takeninto account, nor was his genuine willingness to take advantage of rehabilitationprogrammes.Discussion[30] We consider the discount granted by Lang J was appropriate and not out of stepwith the discounts afforded in other cases. By way of example, we refer to thediscounts given for background factors in the Supreme Court's decision in Berkland,where a discount of 10 per cent was afforded for background factors which causallycontributed to Mr Berkland's methamphetamine offending, including addiction and ahistory of deprivation and trauma.30[31] In any event, we accept that the extent of Mr Simpson's offending is notexplained by his addiction and other background factors. The offending was on asignificant commercial scale and was clearly driven, in large part, by the profits to beearned. As the Judge recognised, not all of the proceeds from Mr Simpson's offendingwent to gangs or sustaining his addiction.31 Mr Simpson's offending involved a degreeof complexity which likely required a careful assessment of the risks involved andtherefore increased agency.32 In those circumstances, as the Supreme Court observedin Berkland:[94] The relevance of an offender's background does not in any way reducethe importance of acknowledging, through sentences, the harm caused by anoffender, and particularly the harm to victims. There are other sentencingpurposes and principles such as deterrence, denunciation and communityprotection. Where offending is particularly serious these principles willusually be more powerfully engaged. 30 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [158] and [162(a)].31 Sentencing notes (Simpson), above n 1, at [26] and [61].32 See Berkland v R, above n 30, at [111].The Court also recognised that background factors would carry most weight where thepotential sentence is at the margin between imprisonment and a community-basedsentence, which is not the case here.33[32] We are not persuaded that the discount given of 12.5 per cent was in error, andthis ground of appeal is also dismissed.Did the Judge make a mathematical error when applying the discount for mentalhealth and addiction issues?[33] As a supplementary point, Mr Hamlin argued that the Judge failed to apply a15 per cent discount, as he had indicated, for mental health and addiction issues and,if he had, this would have made a six month difference to the sentence.Discussion[34] This ground of appeal assumes that the Judge intended to give a 15 per centdiscount for these issues but failed to do so. However, we do not think a proper readingof the judgment discloses such an error. The Judge specified he was intending to givea discount of two years and six months, which he described as being "slightly under15 per cent", to reflect the combined effect of Mr Simpson's mental health andaddiction issues.34 In our view, the Judge's intention to give a discount of two yearsand six months is clear, and there was no arithmetical error.[35] This ground of appeal is dismissed.Should there have been a greater discount for guilty plea?[36] Mr Hamlin submits that the Judge erred in not applying the full 25 per centguilty plea discount. Given the factors outlined in his judgment, including theextensive work to reach resolution, the difficulties in counsel obtaining instructions asa result of the pandemic, and the fact the guilty pleas saved the cost of a lengthy jurytrial, a full 25 per cent discount was warranted.33 At [112].34 Sentencing notes (Simpson), above n 1, at [54].Discussion[37] We do not accept there is any error here. There was clearly a lengthy timebetween being charged and entering guilty pleas, and Mr Simpson had the benefit ofthe charges being reduced in number. Furthermore, the evidence in respect of thecharges was strong. In these circumstances, the discount of 22.5 per cent generouslyreflected the benefits of the guilty pleas to both parties. Indeed, it was higher than thatgiven to most of his co-defendants, a point which Mr Howe raises on appeal.[38] This ground of appeal is dismissed.Mr Howe's appeal against sentenceThe sentencing decision[39] Mr Howe was sentenced by Moore J on 12 December 2022. In setting thestarting point, the Judge took the methamphetamine-related charges as the leadcharges. He observed that Mr Howe's offending involved assisting in the manufactureof just over two kilograms of methamphetamine, which placed his offending inband five of Zhang.35 He then considered Mr Howe's role in terms of the categoriesset out in Zhang of lesser, significant or leading.36 The Judge concluded Mr Howe'srole was a significant operational role, rather than a management role, saying heassisted in the manufacture of methamphetamine and was in direct communicationwith the leader. He also said it was a reasonable inference from the cash found inMr Howe's bedroom that he received significant financial reward and participated forthat reason. The Judge therefore characterised his role as being at the lower end of thesignificant category.37[40] The Judge then considered the offending and starting points adopted forMr Howe's co-offenders to assist in setting a starting point for Mr Howe. Mr Howe'sco-offender, Mr A,38 helped in the manufacture of at least eight kilograms ofmethamphetamine by assisting with building work and transporting material to the35 Sentencing notes (Howe), above n 2, at [12]–[14], citing Zhang v R, above n 7.36 At [15]–[16], citing Zhang v R, above n 7, at [126].37 At [19].38 We have anonymised Mr A's name so that this judgment can be republished online withoutbreaching the terms of the order we make below at [60].site.39 However, Moore J considered Mr Howe's offending was more serious thanMr A's because he directly assisted in the manufacture and distribution ofmethamphetamine. Consequently, a higher starting point was warranted.40 However,Mr Howe's offending was clearly less serious than that of Mr Simpson, whom Moore Jdescribed as a ringleader.41 Moore J therefore settled on a starting point on themethamphetamine charges of 11 years' imprisonment.42 He then imposed an uplift of12 months' imprisonment for the firearms offending.43 He noted that Mr Simpson wasfound in possession of numerous firearms and ammunition and Lang J applied an18-month uplift.44 Mr Howe's offending was less serious because he was inpossession of only one firearm and ammunition, thus justifying a lesser uplift.45[41] In terms of sentencing for the remaining drug offending, including possessionof cannabis, the Judge concluded that, given the lengthy term of imprisonment alreadyimposed and the fact that this aspect of his offending was associated with personaldrug use, no uplift was required.46 The starting point was therefore 12 years'imprisonment.47[42] In respect of Mr Howe's guilty plea, it was submitted he should have the same22.5 per cent discount as Mr Simpson. However, Moore J considered that thatdiscount was "at the upper end of the range" and instead applied a 15 per cent discount,saying this struck "the appropriate balance between recognising the lateness of theplea and the savings associated with not having to proceed to trial."48[43] The next mitigating factor considered was the claim that his offending wasaddiction driven. Mr Howe reported to the pre-sentence report writer that he wasconsuming four or five grams of methamphetamine a day by the age of 27 which ledto him participating in Mr Simpson's manufacturing operation. The Judge held the39 Sentencing notes (Howe), above n 2, at [21].40 At [22].41 At [24].42 At [25].43 At [30].44 At [28], citing Sentencing notes (Simpson), above n 1, at [34].45 At [29].46 At [35]–[36].47 At [37].48 At [41]–[42].connection between his addiction and offending was clear but, given the profit-drivennature of the operation, the discount should be towards the lower end of the range.The Judge gave a discount of five per cent.49[44] In terms of rehabilitative efforts and remorse, the Judge accepted the evidencethat Mr Howe had engaged in rehabilitative programmes and was genuine in hisremorse. He allowed a combined discount of 10 per cent for both those factors.50He also allowed a five per cent discount for previous good character and a discount of14 months for time spent on EM-bail.51 The result was an end sentence of six yearsand seven months' imprisonment.52Was the starting point correct?[45] Mr Rhodes, for Mr Howe, submits the Judge was wrong to place Mr Howe atthe lower end of the significant category, and he should have been placed lower thanband five, especially when compared with his co-offenders, Mr Simpson and Mr A.Mr Rhodes points out that Mr Howe accepted, by his plea, that he assisted with themanufacture of at least two kilograms of methamphetamine, but this occurred in amuch narrower timeframe than the offending of Mr A and Mr Simpson. In particular,he points out that Mr A accepted assisting Mr Simpson with the manufacture of thefull eight kilograms of methamphetamine but was found to have played a lesser role,and an eight-year starting point was indicated by Edwards J.[46] While Moore J characterised Mr Howe's offending as more serious than Mr A'sbecause he directly assisted in both the manufacture and distribution ofmethamphetamine, Mr Rhodes submits this finding was not able to be drawn from thesummary of facts especially when Mr A assisted with the manufacture of moremethamphetamine. Mr Rhodes also points out that, on the facts, Mr Howe's role wassignificantly less than Mr Simpson's. Mr Rhodes argues there is no establishedevidence of his knowledge of the scale of Mr Simpson's operation nor was his rewardcommensurate with his risk, noting he was only found in possession of $10,000 in49 At [45]–[47].50 At [53]–[54].51 At [57] and [61].52 At [63].cash while Mr Simpson was found with over $1.5 million, with at least $700,000 beinghis personally. In summary, Mr Rhodes submits that Mr Howe should be viewed asmuch closer to Mr A and much further from Mr Simpson when setting the startingpoint. In Mr Rhodes' submission, a starting point of eight to nine years' imprisonmentfor the methamphetamine offending in this case is justified.[47] Mr Rhodes then submits that the 12-month uplift for the firearms offendingwas too great, noting that in Berkland, Mr Berkland was found with over 20 weaponsbut the uplift for this offending, together with substantial Class B drug offending, wasonly 12 months.53 Mr Rhodes also submits that Mr Simpson's uplift of 18 months forbeing in possession of numerous firearms suggests Mr Howe's uplift should only havebeen six months.Discussion[48] The starting point for methamphetamine offending should be set having regardto the guidelines in Zhang as well as the observations in the Supreme Court's decisionin Berkland. In particular, Zhang reiterated that quantity was a useful measure of thesocial harm caused by methamphetamine-related offending,54 and the adjusted bandsin Zhang were "intended to encompass most cases of low culpability in setting astarting point".55 However, this Court did not exclude the possibility of a caseinvolving minimal participation falling below those entry points.56[49] Here, Mr Howe was involved in the manufacture of at least two kilograms ofmethamphetamine which placed him at the bottom of band five. However, there wereother indicia of his role which led the Judge to make a finding that he was at the "lowerend of the significant category."57 In our view, there was ample evidence in thesummary of facts to describe Mr Howe's role in that way, as was summarised in theJudge's decision.58 Given Mr Howe's role was appropriately described as at the lower53 Berkland v R, above n 30, at [80].54 Zhang v R, above n 7, at [103].55 At [123].56 At [123].57 Sentencing notes (Howe), above n 2, at [19].58 At [14]–[19].end of the significant category, the starting point of 11 years, being a little above thebottom of band five, could not be said to be in error.[50] We do not consider the lower starting point indicated for Mr A makesMr Howe's starting point erroneous. While Mr A's starting point might be consideredlenient, it reflects the fact that he was not directly involved in the production ofmethamphetamine but assisted by using his skills as a builder and by supplyingmaterials, such as ice and iodine, which were needed for manufacture. In any event,as this Court said in McKay v R: "[a] lenient or unusually merciful sentence extendedto one offender cannot create an expectation other offenders will receive the sameindulgence."59[51] In terms of the uplift, a 12 month uplift for the firearms-related offendingcannot be said to be excessive. While Mr Simpson's uplift for possession ofsignificantly more firearms was only 18 months, it was clear that issues of totalityconstrained the uplift. We agree with the sentencing Judge that the firearms-relatedoffending, on its own, could attract a starting point of two to three years'imprisonment.60 In the circumstances, a 12 month uplift cannot be said to be in error.Furthermore, given there was no uplift for the other drug-related offending, the upliftis clearly within range as regards totality.Should there have been a greater discount for guilty plea?[52] Mr Howe was granted a 15 per cent discount for his guilty plea. The maincriticism of this is that it is inconsistent with the guilty plea discount afforded toMr Simpson by Lang J. Mr Rhodes considers that all the factors which were used tojustify the discount for Mr Simpson applied equally to Mr Howe, noting Mr Howeentered his guilty pleas as soon as he received the decision dismissing one of hischarges pursuant to s 147 of the Criminal Procedure Act 2011 and that preparation forhis case was hampered by the appointment of his counsel as a District Court judge andthe need to instruct new counsel. For these reasons Mr Rhodes says he could not havepleaded guilty to the now agreed level of culpability at any earlier stage.59 McKay v R [2019] NZCA 493 at [27], citing Macfarlane v R [2012] NZCA 317 at [24].60 Sentencing notes (Howe), above n 2, at [29], citing Campbell v R [2022] NZCA 579 at [18].Discussion[53] Mr Simpson and Mr Howe both pleaded guilty on the same day, 29 April 2022,as did most of the other co-defendants. The defendants Ms Wilson and Ms Andersonboth also received a 15 per cent discount for guilty pleas.61 It is unclear from thesentencing notes why Lang J afforded a larger sentencing discount for Mr Simpsonthan he did to Ms Wilson, whom he also sentenced. In Ms Wilson's case, Lang J saidthat while he accepted the pandemic caused difficulties in counsel communicatingwith her, he considered "the strength of the Crown case and the lateness of the pleas"warranted a discount of only 15 per cent.62[54] Again, however, the fact that one co-defendant appears to have been treatedleniently is not sufficient justification for adjusting a discount given to Mr Howe whichis otherwise clearly within range. Fifteen per cent appears to be the discount appliedto a significant number of the co-defendants and, as was said in the sentencing ofMs Wilson, reflects the strength of the evidence against each defendant and thelateness of the plea. In our view, there is no reason to disturb the 15 per cent discountgiven to Mr Howe, notwithstanding it is not as generous as that afforded toMr Simpson.Was the discount for addiction, remorse and rehabilitation too low?[55] Mr Rhodes points out that documents provided at sentencing, including fromprogramme providers, along with the pre-sentence report, clearly set out the extentand nature of the appellant's addiction and his substantial efforts to address that.Mr Rhodes submits that Mr Howe was primarily motivated in the offending to sustainhis "massive" personal drug addiction and not for any personal gain, and thissubstantially reduces his culpability for the reasons outlined in Zhang and Berkland.As a result, the five per cent discount afforded by Moore J was too low, and a discountof 15 to 20 per cent was justified.[56] Mr Rhodes then sets out the significant efforts which Mr Howe made to engagein treatment programmes prior to sentencing, which he says demonstrates Mr Howe's61 R v Wilson [2022] NZHC 1901 at [23]; and R v Anderson [2022] NZHC 2360 at [35].62 R v Wilson, above n 61, at [23].ongoing and sustained commitment to rehabilitation. Mr Rhodes says this should bemet with appropriate recognition in sentencing. While he accepts that the 10 per centMoore J allowed for remorse and rehabilitative efforts could not be criticised inisolation, he says a discount of 15 per cent in total for Mr Howe's extensive addictionand equally extensive efforts to address it was, in combination, substantially too low.Discussion[57] The Judge acknowledged that addiction was a factor driving Mr Howe'soffending. The Judge also acknowledged that the commercial nature of Mr Howe'soffending did not preclude a meaningful discount but said the profit-driven nature ofthe operation encouraged a smaller discount.63 The Judge also compared the discountafforded here with that afforded to the appellant in Berkland, where the Supreme Courtapplied 10 per cent to recognise Mr Berkland's history of deprivation and trauma andhis clinically confirmed methamphetamine addiction.64[58] Here, there are no comparable background factors driving Mr Howe'soffending. He was brought up in a stable and supportive home, and his offendingarose through a combination of circumstances and decisions made when he was anadult. In these circumstances, a lower discount than that in Berkland was appropriate.Even if the five per cent discount was on the low side, the Judge then provided further,reasonably generous discounts both for prior good character and for the evidence ofremorse and rehabilitative efforts resulting, in an overall discount for all these factorsof 20 per cent. In our view, the totality of discounts is clearly in range and should notbe disturbed on appeal.Result[59] The appeals are dismissed.[60] To avoid prejudicing Mr A's fair trial rights, we make an order pursuant to s 202of the Criminal Procedure Act 2011 prohibiting publication of his name, address,63 Sentencing notes (Howe), above n 2, at [46].64 At [44]–[47], n 37, citing Berkland v R, above n 30, at [151]–[158] and [162].occupation or identifying particulars until he is sentenced on the charges to which thesentencing indication referred to at [45] and [50] relates.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent