ROGERS v R [2022] NZCA 39

ROGERS v R [2022] NZCA 39 [7 March 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA469/2021[2022] NZCA 39BETWEEN ELIJAH JOSEPH ROGERSAppellantAND THE QUEENRespondentHearing: 14 February 2022Court: Goddard, Brewer and Edwards JJCounsel: H G de Groot and R H Hohaia for Appellant M B Smith for RespondentJudgment: 7 March 2022 at 10.00 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is allowed.C The minimum period of imprisonment of 50 per cent of the sentence of 19 years' imprisonment is set aside.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] Mr Rogers is 33 years old and of Ngāpuhi, Ngāti Whātua and Te Arawa descent. In 2016, he pleaded guilty to 19 charges relating to his participation in a large-scale methamphetamine operation. He was sentenced in the High Court to 19 years' imprisonment with a 50 per cent minimum period of imprisonment (MPI).[2] Mr Rogers seeks an extension of time to appeal his sentence. The sole focus of the proposed appeal is the imposition of the MPI. As the application for leave involves a consideration of the merits of the appeal, both the leave application and substantive appeal are determined together.The offending[3] The offending arose out of an investigation into the manufacture and supply of methamphetamine by the Head Hunters Motorcycle Club.[4] The operation was spearheaded by Mr Brownie Harding, a patched member of the Head Hunters Motorcycle Club. He put together and directed a group of 11 other patched members and associates of the gang to manufacture and distribute methamphetamine throughout New Zealand.[5] The methamphetamine was manufactured at a residential address in a remote rural locality southwest of Whangarei. It was sold throughout the Auckland and Northland regions. At the time of Mr Rogers' sentencing, it was the largest single case of manufacturing to come before the New Zealand courts.[6] Mr Rogers was 25 years old, and a patched member of the Head Hunters gang when he first became involved in the offending. He was one of several cooks involved in the manufacture of methamphetamine and operated at Mr Harding's direction and in accordance with his instructions.[7] Mr Rogers was sentenced on the basis that he was involved in the production of at least 7 kg of high quality (73 per cent pure) methamphetamine over six distinct manufactures conducted between September and December 2014.High Court sentencing[8] Mr Rogers pleaded guilty to the following charges:(a) Six charges of manufacturing methamphetamine; 11 Misuse of Drugs Act 1975, s 6(1)(b), maximum penalty life imprisonment.(b) Four charges of offering to supply methamphetamine; 2(c) Four charges of conspiring to supply methamphetamine; 3(d) One charge of possession of material with intent that it be used to manufacture methamphetamine; 4(e) One charge of participating in an organised criminal group; 5(f) One charge of possession of a precursor substance with intent that it be used in the manufacture of methamphetamine; 6(g) One charge of possession of equipment with intent that it be used in the manufacture of methamphetamine; 7 and(h) One charge of unlawful possession of explosives. 8[9] The High Court Judge began his sentencing by acknowledging the "unprecedented levels of damage" caused by methamphetamine in the community.9The Judge identified accountability, denouncement and deterrence as the primary purposes and principles of sentencing in cases involving large-scale commercial dealing in methamphetamine.10 The Judge also considered the need to maintain consistency across the sentencing levels of other offenders caught in the operation, and the need to impose the least restrictive sentence in the circumstances. 11[10] At the time of sentencing, the appropriate guidelines were those set out by this Court in R v Fatu. 12 The Judge placed the offending at the very highest rungs of band 42 Section 6(1)(c), maximum penalty life imprisonment.3 Section 6(2A), maximum penalty 14 years' imprisonment.4 Section 12A(2)(a), maximum penalty five years' imprisonment.5 Crimes Act 1961, s 98A, maximum penalty 10 years' imprisonment.6 Misuse of Drugs Act, s 12A(2)(b), maximum penalty five years' imprisonment.7 Section 12A(2)(a), maximum penalty five years' imprisonment.8 Arms Act 1983, s 45(1), maximum penalty four years' imprisonment.9 R v Rogers [2016] NZHC 1103 at [22].10 At [24].11 At [26].12 R v Fatu [2006] 2 NZLR 72 (CA).of those guidelines which attracted starting points of between 13 years and life imprisonment.13[11] As to role, the Judge concluded that Mr Rogers played an important and significant role in the methamphetamine operation. He compared Mr Rogers' role to that of two other co-offenders concluding that Mr Rogers was more culpable because he was involved in all six manufactures and also took part in the distribution of the methamphetamine. 14[12] The Judge rejected the submission that Mr Rogers was a "mere foot soldier" operating at Mr Harding's direction. 15 He considered that the evidence made it plain that Mr Harding trusted Mr Rogers to withhold and manage significant quantities of methamphetamine. It was to Mr Rogers that his co-defendants turned in order to obtain drugs for sale. On this basis, the Judge considered the description of "gate keeper" was appropriate and that Mr Rogers exercised a degree of independent decision-making when it came to the distribution of methamphetamine. 16[13] The Judge went on to consider the charges relating to offering or conspiring to sell methamphetamine. The charges relating to possessing a precursor substance and possessing equipment with the intent to use it in the manufacture of methamphetamine were regarded by the Judge as an aggravating factor to be taken into account in setting the appropriate starting point.17[14] In terms of mitigating factors, the Judge accepted that Mr Rogers' offending was driven, at least in part, by his own addiction to methamphetamine and gambling. The Judge accepted that Mr Rogers either smoked the methamphetamine he received as payment or sold it for the purposes of covering gambling debts.1813 R v Rogers, above n 9, at [31].14 At [42].15 At [43].16 At [43].17 At [45].18 At [46].[15] Weighing up all those factors, the Judge adopted a starting point of 25 years' imprisonment.19 That figure was reached by two different routes. First, it was considered the appropriate overall starting point having regard to the factors canvassed up until that point.20 Second, the Judge considered it could be justified on the basis of a starting point of 22 years' imprisonment for the manufacturing charges, plus an uplift of two years' imprisonment for the distribution charges, and a further year for the possession of precursor substances charges. 21[16] The Judge then turned to consider Mr Rogers' personal circumstances. Mr Rogers was 27 years old at the time of sentencing. He had two children with his partner who was also in prison for unrelated offending. He had a limited criminal history for which an uplift was neither sought nor applied. The Judge referred to the pre-sentence report which recorded that Mr Rogers had grown up with his grandmother who died five years earlier. His grief at her passing had led Mr Rogers to gambling and drugs. 22[17] There were seven letters filed in support of Mr Rogers. The Judge said he had read them all and they had left him feeling "a little bewildered". The extraordinaryfoundation of support from close members of whānau was noted by the Judge.The description of Mr Rogers' character and the certainty that he would not repeat the mistakes which had led him to the dock of the Court were also taken into account. 23[18] The Judge also had regard to Mr Rogers' letter to the Court which expressed feelings of deep remorse for the impact of his offending which the Judge accepted as both real and genuine. 24 The fact that Mr Rogers had told the probation officer that he was no longer a member of the Head Hunters gang was noted by the Judge. Mr Rogers' completion of two programmes designed to address his gambling problems while on remand was also recorded by the Judge together with his motivation to undergo other programmes designed to address drug addiction.2519 At [47].20 At [48].21 At [49].22 At [50]–[51].23 At [53].24 At [54]–[56].25 At [57].[19] The Judge noted that any discount to the sentence for those factors had to be limited as the courts had repeatedly emphasised that in cases of commercial drug dealing, personal circumstances carry little weight. Accordingly, a five per cent discount was applied. 26 A 20 per cent discount was applied to reflect guilty pleas. That brought the end sentence to 19 years' imprisonment.27[20] The Judge then turned to consider whether an MPI should be imposed. The Judge said:[61] Normally, a defendant who serves a term of imprisonment of more than two years will be eligible to apply for parole after they have served one third. However, under s 86 of the Sentencing Act 2002 the Court has the power to order a defendant to serve a longer term of imprisonment where it considers the grant of parole after the normal period would not be sufficient to meet the sentencing principles of deterrence, denunciation and accountability. The Court of Appeal has commented that in cases of very serious drug dealing it is almost inevitable that the criteria for a minimum period of imprisonment will be met. I note a minimum period of 50 per cent was imposed in Mr Hura's case.[62] Despite the urgings of your counsel I have little choice but to apply the same minimum period of imprisonment. A failure to do so would mean that the sentencing principles I have referred to more than once, would not be given proper recognition. I order that you are to serve at least nine and a half years' imprisonment before you are eligible for release.(footnote omitted)[21] An effective end sentence of 19 years' imprisonment for all the charges was imposed with an MPI of 50 per cent.Should an extension of time to bring the appeal be granted?[22] Mr Rogers did not appeal his sentence within the relevant statutory timeframe and he therefore requires an extension of time to bring his appeal.[23] Section 248(4) of the Criminal Procedure Act 2011 gives an appeal court a discretion to extend time for filing an appeal. In deciding whether to grant an extension of time, a court must strike a balance between public and private interests.2826 At [58].27 At [59]–[60].28 Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [51]; and R v Knight [1998] 1 NZLR 583 (CA) at 587.The public interest favours finality and the maintenance of confidence in the administration of justice, while the appellant's private interests favour an extension, particularly where a conviction or liberty is at stake. The interests of others involved in the case may strongly favour finality.29[24] An extension of time should only be granted where special circumstances can be shown to justify a departure from the principle of finality. 30 In R v Knight, this Court stated that in order to succeed in an application to extend time allowing for appeal: 31The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.[25] The length and reasons for delay and the strength of the proposed appeal are considerations of particular focus in this application and are addressed next.The length and reasons for the delay[26] Mr Rogers was sentenced on 24 May 2016 and filed his appeal on 28 July 2021. The delay in pursuing his appeal is approximately five years.[27] Mr Rogers has filed an affirmation explaining that delay. He says that as at the date of sentence, he was still in the process of mentally withdrawing from a significant methamphetamine addiction which represented a daily habit. He says he "lacked the dignity and confidence" required to pursue any of his appeal rights at that time and he was a "man who had lost all his mana".[28] Furthermore, Mr Rogers says that he was not aware that he could appeal individual aspects of his sentence such as the MPI. He only became aware of that right when talking to a group of visitors to the prison in March 2021.29 Cheung v R, above n 28, at [51].30 R v Knight, above n 28, at 589.31 At 589.[29] As we discuss later in this judgment, Mr Rogers has taken every rehabilitative opportunity offered to him while in prison and he is a mentor and leader to other male prisoners. However, the MPI is limiting his ability to participate in other rehabilitative programmes, such as the release to work programme. That is because those programmes are only available to those who have passed their parole eligibility date. It is essentially for this reason he decided to seek an extension of time to pursue the appeal.[30] The five year delay in pursuing the appeal is very lengthy in this case. While the reasons for that delay are accepted and acknowledged, they do not, on their own, justify departure from the principle of finality. There must be other special features which compel the grant of an extension of time in this case.The strength of the proposed appeal[31] The sole ground of the proposed appeal is the imposition of the 50 per cent MPI. The power to impose an MPI is set out in s 86(2) of the Sentencing Act 2002 which provides:86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:(a) holding the offender accountable for the harm done to the victim and the community by the offending:(b) denouncing the conduct in which the offender was involved:(c) deterring the offender or other persons from committing the same or a similar offence:(d) protecting the community from the offender.[32] This section requires a Judge to consider whether the minimum statutory non-parole period specified in the Parole Act 2002 is insufficient to meet any or all ofthe four purposes specified in s 86(2)(a) to (d). If so, then a longer MPI may be imposed. Under s 86(4) that MPI must not be greater than 10 years.[33] As at the date of sentencing in 2016, the imposition of an MPI for a cook in a significant and large-scale methamphetamine operation would not have been unusual. In fact, as the High Court Judge observed, on the basis of this Court's decision inR v Wong, 32 the imposition of an MPI was "almost inevitable" in cases of very serious drug dealing.33 The decision to impose an MPI was therefore entirely orthodox at the time and consistent with the guidance of this Court.[34] However, since then, a Full Bench of this Court has held that imposing an MPI as a matter of routine does not accord with s 86.34 Instead, a reasoned analysis is required both as regards to the imposition of an MPI and its length.35 That means that while the imposition of an MPI in cases of very serious drug offending may still be required, that must be a conclusion reached on the facts of a particular case. We consider there were unique features of Mr Rogers' case which meant that an MPI longer than the one third statutory period was not required.[35] Those unique features include Mr Rogers' personal circumstances. Mr Rogers was relatively young (25 years old) when he was drawn into the offending. He had a limited criminal history, comprising four convictions for low level offending for which he was either fined or sentenced to community work. He had not received a sentence of imprisonment before.[36] Mr Rogers expressed deep remorse for his part in the offending which the Judge accepted was real and genuine. That remorse was substantiated by completing two programmes to address problem gambling while on remand and an express desire to undergo other programmes designed to assist with drug addiction. That deep remorse was underscored by Mr Rogers' renunciation of his membership of the Head Hunters gang — a significant and no doubt difficult step as he began a lengthy period of imprisonment. These actions showed Mr Rogers was taking responsibility32 R v Wong [2009] NZCA 332 at [21].33 R v Rogers, above n 9, at [61].34 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169].35 At [169].for the drivers that led him into offending and had already begun to address them. That boded well for his rehabilitative prospects.[37] Mr Rogers' rehabilitative prospects were also strengthened by strong supportfrom whānau and friends. Some insight into Mr Rogers' character was captured in the letters filed in his support for sentencing. He was described as a role model, guidance counsellor and a man respected for his kindness, humility and self-discipline. The fact that these descriptions of Mr Rogers "bewildered" a highly experienced and senior High Court Judge is indicative of the unique features of Mr Rogers' character.[38] Mr Rogers' supporters also expressed confidence that Mr Rogers would not repeat the same mistakes again. The steps taken by Mr Rogers since he was sentenced suggest that this confidence is not misplaced. Since he has been in prison, Mr Rogers has completed numerous rehabilitation programmes. It appears that Mr Rogers has broken his drug addiction and is a low security prisoner in a self-care unit. He is also employed as a kaiako (teacher) and rūnanga member in Te Whare Tirohanga Māoriand acts as a mentor and positive role model for other prisoners, including rangatahi in the Youth Unit. Mr Rogers is the kaikōrero and presenter of wānanga to visitingdelegations including government ministers. The likelihood of a dedicated and disciplined approach to rehabilitation and reform, a prediction that has been borne out in practice, was a special feature of Mr Rogers' case.[39] The factors that led Mr Rogers to become involved in the manufacture of methamphetamine are also relevant here. Unusually for offending of this scale and nature, it does not appear to have been motivated by greed. Mr Rogers was not drawn into the methamphetamine trade by the large profits that could be made. Rather, he was paid for his services in methamphetamine, which he either smoked himself or sold to cover gambling debts. As the sentencing Judge accepted, Mr Rogers' offending was driven, at least in part, by an addiction to methamphetamine and gambling.[40] This combination of personal circumstances goes a long way to meeting the four purposes of sentencing set out in s 86(4). Genuine and deep-felt remorse meets the principle of accountability. Strong rehabilitative prospects for a relatively young man provide protection for the community and lessen the need for the sentence toemphasise personal deterrence. A sentence which deters others from engaging in the manufacture and distribution of methamphetamine is particularly important when the motivation for the offending is greed. But that purpose assumes less importance when the offending is motivated by addiction and the repayment of debts that are themselves the product of an addiction.[41] Against that background, we consider the sentence of 19 years' imprisonment was more than enough to meet the four purposes set out in s 86(4). There is no challenge to the length of the sentence, and nor can there be. This was large-scale offending of the most serious kind. However, given Mr Rogers' personal factors, a lengthy sentence of imprisonment provided significant accountability, denouncement, public protection, and deterrence. A lengthy MPI (just six months short of the 10-year statutory maximum) was not required in addition.[42] More importantly, the statutory non-parole period for a 19-year sentence of imprisonment (six years and four months) also met these purposes. That non-parole period represented approximately one-quarter of Mr Rogers' life at the time he started offending. The difference between this non-parole period and the MPI of nine years, six months was three years and two months. That difference has significant consequences for Mr Rogers. However, given the factors we have already canvassed, we do not accept that it provides additional accountability, deterrence, denouncement or protection for the public such that its imposition would be justified. In other words, we consider the statutory non-parole period was sufficient.[43] Mr Smith, for the Crown, submits that quashing the MPI will create parity concerns with the sentences received by Mr Rogers' co-offenders each of who were ordered to serve MPIs of 50 per cent of their sentence.[44] We do not agree. Whether an MPI should be imposed involves a fact-specific enquiry. It does not follow from the imposition of an MPI for one offender that the same MPI should automatically apply to all offenders involved in that offending. That approach would lead to the mechanistic and routine application of MPIs that this Court has said should cease. As we have emphasised in this judgment, the unique features of Mr Rogers' case have persuaded us that an MPI was not required in hiscase. That, however, says nothing about whether an MPI was required for any or all of his co-offenders.[45] Mr Rogers' proposed appeal is sufficiently strong to overcome the long delay in pursuing it. This is one of those rare cases where the private interests of Mr Rogers outweigh the public interest in finality. We consider the interests of justice require an extension of time to be granted so that the appeal may be pursued. We order accordingly.Should the appeal be granted?[46] For all the reasons set out above, we are satisfied that Mr Rogers' appeal has merit. We accordingly allow the appeal and set aside the MPI ordered to be served on the sentence of 19 years' imprisonment.Result[47] An extension of time to bring the appeal is granted.[48] The appeal is allowed.[49] The MPI of 50 per cent ordered to be served in respect of the sentence of 19 years' imprisonment is set aside.Solicitors:Crown Solicitor, Whangarei for the Respondent