PARKES v R [2020] NZCA 203

PARKES v R [2020] NZCA 203 [2 June 2020]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMEOR IDENTIFYING PARTICULARS OF G REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA67/2018[2020] NZCA 203BETWEEN GERRARD GORDON PARKESAppellantAND THE QUEENRespondentHearing: 29 April 2020Court: Cooper, Collins and Simon France JJCounsel: M N Pecotic for AppellantZ A Fuhr for RespondentJudgment: 2 June 2020 at 11.00 amJUDGMENT OF THE COURTA The application for an extension of time to file an appeal is granted.B The appeal is allowed.C The sentence of 11 years' imprisonment in relation to the drug offendingis quashed and substituted with a sentence of 9 years' imprisonment.The cumulative sentence of 1 year imprisonment in relation to attemptingto dissuade witnesses remains.D The minimum period of imprisonment is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 8 December 2017, Mr Parkes was sentenced by Davison J to 12 years'imprisonment, following a trial in the High Court in which he was found guilty ofeight charges of supplying methamphetamine and one charge of possession ofmethamphetamine for the purposes of supply.1[2] On the morning his trial commenced, Mr Parkes pleaded guilty to two othercharges of supplying methamphetamine and one charge of possessing material used inthe manufacture of methamphetamine. Mr Parkes was sentenced to 11 years'imprisonment in relation to all his drug offending.2 He was sentenced to an additionalterm of 1 year's imprisonment in relation to a charge of attempting to dissuade twowitnesses from giving evidence in an unrelated trial.3 That sentence was cumulativeupon the sentence imposed in relation to Mr Parkes' drug offending.[3] A minimum period of imprisonment (MPI) of 53 months (40 per cent) wasimposed in relation to Mr Parkes' drug offences sentences.[4] Mr Parkes' appeal against his conviction was dismissed in 2018 by this Court.4He now appeals his sentence. It is contended the High Court Judge erred inthe following respects:(a) when determining the amount of methamphetamine that Mr Parkessupplied;(b) by adopting a starting point which Mr Parkes maintains was excessive;(c) by applying an uplift to reflect Mr Parkes' prior convictions;1 R v Parkes [2017] NZHC 3077 [High Court sentencing decision].2 At [115].3 At [116].4 Parkes v R [2018] NZCA 386.(d) by failing to give sufficient credit to reflect Mr Parkes' personalcircumstances, principally, his drug addiction and mental health issues;(e) by not giving Mr Parkes sufficient credit for time spent on electronicmonitoring bail (EM Bail) prior to trial;(f) by not giving Mr Parkes credit for his guilty pleas;(g) by imposing the MPI of 40 per cent in relation to the drug offencessentence; and(h) by imposing what Mr Parkes says was an excessive cumulativesentence for attempting to dissuade witnesses from giving evidence.Extension of time to appeal[5] Mr Parkes' notice of appeal was filed seven days out of time. As the Crownhas not been prejudiced by this comparatively minor delay, we grant an extension oftime for filing the notice of appeal.Background[6] In August 2015, police commenced an investigation codenamed"Operation Bunk" into the manufacture and supply of methamphetamine and othercontrolled drugs by Mr Parkes and other suspects.[7] From 12 October 2015 to 16 January 2016, police maintained carefulsurveillance of the home of Ms Nikora, one of Mr Parkes' co-offenders. The policeinstalled a hidden camera near the front of Ms Nikora's home and audio recordingequipment in her home. The equipment installed by the police recorded a number ofincidents of drug dealing, including drug deals conducted by Mr Parkes. Police alsointercepted telephone calls between Mr Parkes and Ms Nikora and obtained pollingdata relating to the location of their cell phones.[8] The Crown case was that Ms Nikora would send coded messages to Mr Parkesrequesting him to supply her with methamphetamine, which she then on-sold to hercustomers.[9] A total of 11 people were charged with drug offending when Operation Bunkterminated. Mr Parkes' trial proceeded against him and three of Ms Nikora'scustomers:(a) Mr Hemingway;(b) Mr Munro; and(c) Mr Wynne.[10] Ms Nikora and one of her clients, G, pleaded guilty before trial. At Mr Parkes'trial the Crown relied upon certificates of conviction in relation to eight of the chargesagainst Ms Nikora and four of the charges against G.[11] In addition to being charged with being Ms Nikora's wholesale supplier ofmethamphetamine, Mr Parkes was charged with specific offences relating tothe supply of 72 grams of methamphetamine to Mr Munro, the supply of 14 grams ofmethamphetamine to G, the supply of at least 28 grams of methamphetamine toMr Haeta and possession of 70 grams of methamphetamine during one of his visits toMs Nikora's home.[12] At trial, Mr Parkes maintained that:(a) the Crown had misinterpreted his text messages and othercommunications with Ms Nikora;(b) Ms Nikora was the person "calling the shots" rather than Mr Parkes;and(c) Ms Nikora had other suppliers.[13] The jury convicted Mr Parkes on nine charges. He was found not guilty of twocharges and three other charges were dismissed pursuant to s 147 of theCriminal Procedure Act 2011.[14] Following his convictions, Mr Parkes disputed the amount ofmethamphetamine that the Crown contended he had supplied. This led to a disputedfacts hearing and a judgment on quantum from Davison J, in which he concludedMr Parkes had supplied Ms Nikora with 568.8 grams of methamphetamine.5 In hisfirst ground of appeal Mr Parkes challenges the findings of Davison J on quantum.He claims, that at most, he supplied Ms Nikora with 270 grams of methamphetamine,plus amounts that could not be quantified on the evidence, and which the Judge didnot take into account for sentencing purposes.First ground of appeal: quantum[15] The disputed facts hearing was conducted on the basis that Davison J was toreach his conclusions as to quantum by examining all of the relevant evidence adducedat the trial of Mr Parkes and his co-defendants. Counsel for the Crown, and Ms Pecoticfor Mr Parkes, made submissions as to what conclusions could be drawn fromthe evidence.[16] The calculations of the quantities of methamphetamine involved in Mr Parkes'offending comprised two separate elements. First, in relation to the wholesale suppliesof methamphetamine to Ms Nikora, the Crown relied on the evidence that Ms Nikorapleaded guilty to supplying 751.1 grams of methamphetamine during the relevantperiod. From that sum the Crown deducted two quantities of methamphetamine:(a) 168 grams that related to a charge that was not proven againstMr Parkes; and(b) 56 grams that a Mr Page supplied to Ms Nikora on 13 December 2015.This left a balance of 527.1 grams that the Crown says was supplied toMs Nikora by Mr Parkes as part of his wholesale operation. Davison J5 R v Parkes [2017] NZHC 2935 [Disputed facts judgment].did not, however, sentence Mr Parkes on the basis of the Crown'scalculation. Instead, he adopted a figure of 384.8 grams forthe wholesale supplies of methamphetamine by Mr Parkes toMs Nikora. Part of the difference between the Crown's figure andthe findings made by Davison J relate to Charge 51, which the Crownsays involved more than 160.3 grams of methamphetamine. Davison Jconcluded that charge concerned 117 grams of methamphetamine.6For reasons which we will explain at [38]–[40] we are satisfiedthe correct figure for that charge is 112 grams of methamphetamine.The other differences between the Crown's calculations and thosereached by Davison J in relation to the wholesale supply ofmethamphetamine by Mr Parkes to Ms Nikora are explained byDavison J's assessment of the evidence relating to each of the chargesin issue.[17] Second, in relation to the "stand alone supply" charges, the Crown maintainedMr Parkes' offending related to 184 grams of methamphetamine. The Judge acceptedthe Crown's calculations in relation to those charges.7[18] The amount of methamphetamine involved in Mr Parkes' offending wastherefore calculated by the High Court Judge to be 384.8 grams plus 184 grams,making a total of 568.8 grams.[19] In this Court, Ms Pecotic continued to challenge the findings made bythe High Court Judge. In her written submissions Ms Pecotic argued that, by hercalculations, Mr Parkes applied 270 known grams plus unknown amounts ofmethamphetamine to Ms Nikora, thereby placing his offending in band three of bothR v Fatu8 and Zhang v R.9 Ms Pecotic acknowledged, however, an arithmetical errorin her submissions. Using the numbers cited by Ms Pecotic, Mr Parkes must havesupplied at least 298 grams plus unknown quantities of methamphetamine toMs Nikora.6 At [36].7 At [38].8 R v Fatu [2006] 2 NZLR 72 (CA) at [34].9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].[20] There are four general grounds upon which Mr Parkes challengesthe calculations made by the High Court Judge:(a) Mr Parkes was not Ms Nikora's only supplier during the relevantperiod. Therefore it was wrong to calculate amounts he supplied toMs Nikora by reference to the amounts she supplied to her clients.(b) Ms Nikora was supplying drugs before and after Mr Parkes enteredthe picture. Therefore, it is argued, Ms Nikora must have had othersuppliers of methamphetamine.(c) Mr Parkes was found not guilty or discharged from charges to whichMs Nikora pleaded guilty. Therefore, it is contended, in order forMs Nikora "to have sourced the methamphetamine, it would have tohave come from someone else".(d) Summaries of facts were referred to by the Crown in the disputed factshearing that were not relied upon at trial.[21] We will briefly explain why we do not accept these arguments.[22] Ms Pecotic maintains that the evidence before Davison J showed thatMs Nikora received methamphetamine from Mr Page in exchange for allowing him touse her home for drug offending activity. The Crown and Davison J accepted this wasthe case.10[23] An examination of the evidence shows that Ms Nikora received 56 grams ofmethamphetamine from Mr Page on 13 December 2015. Aside from that transaction,Mr Parkes was the only person who was known to have supplied methamphetamineto Ms Nikora between 12 October 2015 and 16 January 2016. During that period,Ms Nikora's property was carefully monitored by the police. We agree with Davison Jthat if other persons were supplying Ms Nikora with methamphetamine during that10 Disputed facts judgment, above n 5, at [6] and [30].period, it is highly likely that they would have been observed entering Ms Nikora'shome.[24] We do not accept that the 56 grams of methamphetamine that Mr Page suppliedMs Nikora on 13 December 2015 undermines the proposition that almost all ofthe methamphetamine supplied to Ms Nikora during the period covered by the chargescame from Mr Parkes.[25] The argument that Ms Nikora had other suppliers during the two-monthperiods prior to and after Mr Parkes was observed going to and from her home doesnot undermine the findings of Davison J, that between 12 October 2015 and16 January 2016, Ms Nikora received almost exclusively from Mr Parkesthe methamphetamine that she on-sold to her clients.[26] The fundamental lacuna in the third argument advanced by Ms Pecotic is thatin his disputed facts judgment Davison J carefully excluded from his calculationstransactions covered by charges to which Mr Parkes had either been discharged orfound not guilty.[27] The fourth argument advanced by Ms Pecotic also does not gain traction.While the Crown did rely in the disputed facts hearing on the summary of facts towhich Ms Nikora pleaded guilty, Davison J did not simply rely on that summary offacts. The Judge also calculated his findings as to quantum by reference tothe evidence in relation to each of the charges that Mr Parkes was to be sentenced for.[28] As already noted, Mr Parkes accepted he supplied 298 grams plus unknownadditional quantities of methamphetamine to Ms Nikora. When distilled to itsessential elements, the dispute before us regarding the quantum concerns the followingcharges:Charge Amount: Defence Amount: High Courtfindings2 Unknown 62 grams6 Unknown 77 grams16 Unknown 45.3 grams24 Unknown 28 grams26 Unknown 70 grams38 16 grams 42 grams51 112 grams 117 grams[29] We will now explain the evidence and our conclusions concerningthe quantities involved in relation to each of those eight charges.Charge 2[30] This was the first of the wholesale supply charges that Mr Parkes was convictedof. It was established Mr Parkes supplied methamphetamine to Ms Nikora on12 October 2015. The calculations made by Davison J concerning this charge werebased on Ms Nikora's admission that she on-sold at least 62 grams ofmethamphetamine that she received from Mr Parkes in five different transactionsbetween 14 and 21 October 2015. In our assessment, the High Court Judge wasentitled to conclude that Mr Parkes must have supplied at least 62 grams ofmethamphetamine to Ms Nikora on 12 October 2015.Charge 6[31] This was the second wholesale supply charge that Mr Parkes was convicted of.It was established Mr Parkes supplied methamphetamine to Ms Nikora on22 October 2015. Davison J calculated that the quantity involved in this transactionwas at least 77 grams. That sum was calculated on the basis of Ms Nikora's admissionthat she on-sold at least 77 grams in 13 different transactions between 22 October and5 November 2015. Nothing advanced by Ms Pecotic undermines the accuracy ofthe calculations made by Davison J in relation to this charge.Charge 16[32] This was the third wholesale supply charge that Mr Parkes was convicted of.It was established that Mr Parkes supplied methamphetamine to Ms Nikora on7 November 2015. Davison J calculated this transaction must have involved at least45.3 grams because Ms Nikora pleaded guilty to on-selling at least that amount in10 transactions between 7 and 20 November 2015. As we have previously explained,the methodology adopted by Davison J was appropriate and produced a figure thataccurately reflected the magnitude of Mr Parkes' offending on 7 November 2015.Charge 24[33] This was the fourth wholesale supply charge that Mr Parkes was convicted of.It was established Mr Parkes supplied methamphetamine to Ms Nikora on23 November 2015. Davison J calculated the quantity involved was 28 grams basedon Ms Nikora's admission that she on-sold 14 grams on 24 November 2015 and14 grams on 1 December 2015. We are satisfied the High Court Judge's calculationwas accurate.Charge 26[34] Charge 26 alleged that on 3 December 2015, Mr Parkes had possession ofmethamphetamine at Ms Nikora's home. He was found guilty of this charge.Davison J was satisfied that 70 grams of methamphetamine was in Mr Parkes'possession that day.[35] The evidence at trial was that on 3 December 2015, Mr Parkes was atMs Nikora's home with G. Mr Parkes was recorded as asking for scales and soonthereafter he referred to "70 grams". Ms Pecotic argues Mr Parkes also referred to$9,500, which she says equates to 28 grams of methamphetamine.[36] The evidence of Mr Parkes referring to 70 grams of methamphetamine duringhis conversation with Ms Nikora and G was sufficient for Davison J to be satisfiedbeyond reasonable doubt that was the amount of methamphetamine he had in hispossession for the purposes of supply on 3 December 2015.11Charge 38[37] This was the fifth wholesale charge that Mr Parkes was convicted of. It wasestablished he supplied methamphetamine to Ms Nikora on 21 December 2015.Davison J was satisfied the quantity involved was more than 42 grams. As withthe other wholesale supply charges, this figure was based on admissions by Ms Nikorathat she had on-sold at least 42 grams of methamphetamine in six transactions from22 to 28 December 2015. We accept the accuracy of the calculation made by Davison Jin relation to this charge.Charge 51[38] Charge 51 alleged that on 29 December 2015, Mr Parkes suppliedmethamphetamine to Ms Nikora. He pleaded guilty to that charge. Davison J foundMr Parkes supplied Ms Nikora 117 grams of methamphetamine in this particulartransaction.12 That figure was based on the amount of methamphetamine thatMs Nikora sold from 29 December 2015 to 29 March 2016. The Judge, however,adopted a cut-off point of 13 January 2016; the date the offending by Mr Parkes wassaid to have ended. Adopting that cut-off Davison J calculated the amount involvedin relation to Charge 51 was 117 grams.[39] The evidence of quantum involved in Charge 51 was contained in intercepteddiscussions between Mr Parkes and Ms Nikora. In their conversations, Mr Parkesreferred to "two fifty sixes" and "one twenty". Ms Pecotic says Mr Parkes' referencesto "two fifty sixes" meant he was referring to 112 grams of methamphetamine. Therewas no explanation as to what Mr Parkes meant when he referred to "one twenty".[40] Although the difference between 112 and 117 grams of methamphetamine is,in the context of this case, comparatively minor, we think the prudent approach is totreat the evidence as demonstrating that Mr Parkes supplied 112 grams of11 At [27] and [38].12 At [36].methamphetamine to Ms Nikora on 29 December 2015 rather than the slightly highersum calculated by the Judge.[41] For completeness, we record that in her written submissions Ms Pecoticpurported to challenge the Judge's findings as to quantum associated with Charge 43.However, when we examined the evidence it appears to have been accepted inthe High Court that Charge 43 involved the supply of 72 grams of methamphetamineto Mr Munro.[42] After traversing the evidence that was placed before Davison J, we are satisfiedhe was entitled to conclude Mr Parkes' offending involved at least 563.8 grams ofmethamphetamine.Second ground of appeal: starting point[43] Davison J assessed Mr Parkes' offending as being at the lower end of band fourof R v Fatu.13 After considering Mr Parkes' role, the amount of money he made andthe period over which the offending took place, the Judge determined that an 11-yearstarting point was appropriate.14[44] Mr Parkes' appeal against sentence was filed before this Court's decision inZhang v R.15 It is accepted by the Crown that Mr Parkes' sentence appeal is to bedetermined in accordance with the revised sentencing guidelines in Zhang.[45] The guideline for band four offending which involve quantities between500 grams and two kilograms is now a starting point of between 8 to 16 years,compared to 10 years to life for band four in Fatu.[46] When determining the appropriate starting point both quantity and the role ofthe defendant need to be assessed. While it did not adopt the United KingdomSentencing Council's "double axis" approach for setting a starting point, this Court inZhang said that sentencing judges may derive assistance by having regard to13 R v Fatu, above n 8.14 High Court sentencing decision, above n 1, at [42].15 Zhang v R, above n 9.the Sentencing Council's indicia for assessing an offender's role.16 The threecategories of role referred to in the Sentencing Council's guidelines are:Lesser Significant Leading1. Performs a limitedfunction under direction;1. Operational ormanagement function inown operation or within achain;1. Directing or organisingbuying and selling on acommercial scale;2. Engaged by pressure,coercion, intimidation;2. Involves and/or directsothers in the operation,whether by pressure,influence, intimidation orreward;2. Substantial links to, andinfluence on, others in achain;3. Involvement throughnaivety or exploitation;3. Motivated solely orprimarily by financial orother advantage, whether ornot operating alone;3. Close links to originalsource;4. Motivated solely orprimarily by own addiction;4. Actual or expectedcommercial profit; and/or4. Expectation of substantialfinancial gain;5. Little or no actual orexpected financial gain;5. Some awareness andunderstanding of scale ofoperation.5. Uses business as cover;and/or6. Paid in drugs to feed ownaddiction or cashsignificantlydisproportionate to quantityof drugs or risks involved;6. Abuses a position of trustor responsibility.7. No influence on thoseabove in a chain;8. Little, if any, awarenessor understanding of the scaleof the operation; and/or9. If own operation, solelyor primarily for own or jointuse on non-commercialbasis.[47] In addition to challenging the quantum that Davison J said Mr Parkes suppliedMs Nikora, Ms Pecotic contended that Mr Parkes' role placed him "within the regionof a significant player, not a lead player as his offending was largely motivated by hisown addiction". Ms Pecotic also contended that as Ms Nikora was his only customer,this indicated he was not a lead player in the enterprise.[48] Although Ms Pecotic dealt with addiction when addressing her argumentsabout the correct starting point, we will address Mr Parkes' addiction issues when16 At [126].dealing with the fourth ground of appeal. We do not accept Ms Pecotic's methodologyin this case of treating addiction as being both a factor for determining the startingpoint and as a discrete factor when assessing mitigating matters that may lead todeductions from the starting point. As we will explain, Mr Parkes' offending was notcaused by his drug addiction. He is therefore in a different category from defendantswhose addiction may affect their starting point.17[49] We are satisfied Mr Parkes played a leading role in the methamphetaminesupply enterprise that he was engaged in. Our reasons for reaching this conclusion aresummarised in the following way:(a) He was a wholesale supplier of methamphetamine. He performed thatrole for three months. Importantly, Davison J concluded Ms Nikorawas "near the top of the supply chain"18 and that Mr Parkes was "higherup the supply chain and closer to the manufacturer".19 Ms Pecoticchallenges this assessment, but what is indisputable is that Mr Parkesplayed a leading role in supplying commercial quantities ofmethamphetamine to Ms Nikora and that he was close to the originalsource of the methamphetamine that was supplied.(b) Mr Parkes was motivated by the substantial financial gains he expectedto receive from the enterprise. There was evidence of Mr Parkestalking about very large sums of money in relation to his drugoffending. For example, in one conversation between Mr Parkes andMs Nikora on 8 December 2015, Mr Parkes was recorded talking abouttens of thousands of dollars. In another conversation recorded on16 January 2016, Mr Parkes and G referred to "50 grand". Duringthe course of oral submissions before us, Ms Pecotic suggestedMr Parkes may have been addicted to making money as well as beingaddicted to methamphetamine. Ms Pecotic may have been correct, but17 See for example, Royal v R [2020] NZCA 129 at [16]–[17].18 High Court sentencing decision, above n 1, at [7].19 At [35].if Mr Parkes was addicted to making money it hardly diminishes hisrole in the offending or his culpability.(c) In addition to expecting to make money from supplying significantquantities of methamphetamine to Ms Nikora, Mr Parkes showed signsof having in fact made substantial profits from the enterprise. Therewas evidence he paid $33,000 in cash for a car and that he also paidcash for the rental of a property leased by his then partner and hermother.(d) Mr Parkes' proximity to the original source of the methamphetamineand his role as a wholesale supplier to Ms Nikora shows that he musthave had some appreciation of the magnitude of the enterprise which,by any analysis, constituted offending on a commercial scale.[50] We disagree with Ms Pecotic's submission that because Mr Parkes had onecustomer that he then could not have been a leading player in the enterprise.The Crown is correct when it submitted Mr Parkes was a wholesaler and that thisreflected his seniority in the chain. The fact he needed just one customer underpinsthe submission that he was a very senior figure in the supply chain.[51] We are satisfied Mr Parkes supplied well over 500 grams of methamphetamineand that he played a leading role in the methamphetamine enterprise. His offendingwas at the bottom of band four.[52] However, had Mr Parkes been sentenced after Zhang we think it highly likelythat Davison J would have adopted a lower starting point which reflects the newguidelines. That starting point is likely to have been nine years' imprisonment. Thatis the starting point which most accurately reflects the sentencing guidelines in Zhangand is the starting point we will apply when determining Mr Parkes' appeal.Third ground of appeal: previous convictions[53] Mr Parkes has 66 previous convictions, including five in 2011 for possessingequipment used in the manufacture of controlled drugs for which he was sentenced to15 months' imprisonment. Davison J applied an uplift of three months to reflectMr Parkes' previous convictions.20 Ms Pecotic acknowledged this was a "modest"adjustment. There is no basis upon which this aspect of the sentencing decision canbe responsibly challenged.Fourth ground of appeal: addiction and mental health[54] When sentencing Mr Parkes, Davison J recorded that Mr Parkes admitted hewas addicted to methamphetamine and that he said he supplied methamphetamine inorder to support his habit.21 The High Court Judge declined, however, to discountMr Parkes' sentence on account of his addiction.22[55] In Zhang, this Court explained that addiction may be a mitigating factor wherethere is a causal link between a defendant's offending and his or her addiction.23The rationale for treating addiction as a mitigating factor in these circumstances is thataddiction may compromise an offender's rational choice to offend and this in turnreduces the deterrent objectives of sentencing. Addiction may also lead to a prisonsentence being disproportionately severe for a defendant. Addiction is, however,unlikely to be genuinely causative of offending that takes place on a commercial scale.This is because addiction in cases involving large quantities of methamphetamine is"likely to be inconsistent with the impairment of the ability to exercise rational choice,which is what diminishes culpability and justifies discounting the sentence".24[56] The evidence of Mr Parkes' addiction to methamphetamine comes from twopsychological reports and the fact that he attended alcohol and drug addictionprogrammes in prison and was a resident at the Capri Hospital and Te Ara HouRehabilitation Programmes.[57] The psychological reports were prepared by Ms Visser, prior to Mr Parkesbeing sentenced and Dr Purcell in November 2018. Dr Purcell provideda supplementary report on 1 April 2019.20 At [48].21 At [43].22 At [47].23 Zhang v R, above n 9, at [147].24 At [147].[58] Both psychologists recorded Mr Parkes' history of drug addiction and hisrelapses in 2010, 2011 and 2015. In her report, Ms Visser said Mr Parkes' past historyof parental neglect, his unstable relationships and his substance abuse led him"to offending in relation to domestic violence and offending to support his addiction".In her reports Dr Purcell did not specifically link Mr Parkes' most recent drugoffending with his addiction.[59] We accept Mr Parkes has been addicted to methamphetamine and that he hastaken constructive steps towards addressing the underlying causes of his addiction.We cannot, however, accept the commercial drug offending engaged in by Mr Parkeswas caused by his addiction. As we have already explained, Mr Parkes' offending inthis case was motivated by the money he hoped to make by supplying large quantitiesof methamphetamine to Ms Nikora.[60] Thus, Mr Parkes has not discharged the onus of establishing that his decisionto engage in large scale supplies of methamphetamine was caused by his addiction.We therefore agree with the High Court Judge that no discount can be given foraddiction in this case.[61] Mr Parkes also seeks a discount for mental health issues. The reports fromMs Visser and Dr Purcell suggest Mr Parkes may have suffered from post-traumaticstress disorder and that on occasions he has suffered depression. Neither report,however, provides sufficient detail for us to conclude that any psychological issuesMr Parkes may have suffered contributed in material ways to his offending.Fifth ground of appeal: time spent on EM Bail[62] Mr Parkes spent nine months on EM Bail prior to trial. In the High Court,Davison J took this into account by providing a three-month discount to the sentenceimposed upon Mr Parkes.25[63] In this Court, Ms Pecotic argued that a greater discount should have been madeto reflect the time Mr Parkes spent on EM Bail.25 High Court sentencing decision, above n 1, at [49].[64] The discount in this case was one-third of the time spent on EM Bail.Discounts of up to 50 per cent for time spent on EM Bail are not uncommon, but giventhe approach we are taking in reducing Mr Parkes' sentence we do not consider itnecessary to disturb this aspect of the High Court decision.Sixth ground of appeal: discount for the guilty pleas[65] Mr Parkes entered guilty pleas to three charges on the first day of his trial.Davison J was not persuaded to provide any discount for these guilty pleas incircumstances where Mr Parkes proceeded to trial in relation to 14 charges and wasconvicted in relation to nine of those charges.26 In the circumstances of this case,the Judge was fully justified in not giving Mr Parkes any discount for his guilty pleas.Seventh ground of appeal: minimum period of imprisonment[66] In Zhang this Court explained that MPIs must not be imposed as a matter ofroutine and that there was no basis for any practice of imposing MPIs as a matter ofcourse where prison sentences exceeded 9 years.27[67] When imposing the MPI in this case Davison J referred to an MPI being"almost invariably the case" where there is serious drug offending.28 The Judge saidthat the considerable amount of methamphetamine supplied by Mr Parkes,the amounts of money he made from his offending and the period of his offendingwarranted the imposition of an MPI that reflected 40 per cent of the end sentenceimposed for Mr Parkes' drug offending.[68] Ms Fuhr, for the Crown, responsibly accepted that, in light of Zhang, it wasdifficult to argue that the MPI should remain in place in this case.[69] We do not think s 86 of the Sentencing Act 2002 required the imposition of anMPI in this case. This is because we are satisfied that requiring Mr Parkes to serve hissentence without an MPI will:26 At [50].27 Zhang v R, above n 9, at [169]–[173].28 High Court sentencing decision, above n 1, at [51].(a) hold him accountable for the harm caused to the community by hisoffending; and(b) denounce his conduct; and(c) protect the community from him; and(d) provide sufficient deterrence to him and others from offending ina similar way in the future.[70] We will therefore quash the MPI.Eighth ground of appeal: cumulative sentence for attempting to dissuadewitnesses[71] Ms Pecotic maintains that Davison J erred by adopting a starting point of2 years and 6 months' imprisonment in relation to the charge of attempting to dissuadetwo witnesses from giving evidence in another trial by offering them $10,000 each notto give evidence. We disagree. The starting point adopted by Davison J was consistentwith Coombs v Crown Law where the offender offered a complainant $600 towithdraw her statement.29[72] The discounts given by Davison J to reflect Mr Parkes' early guilty plea to thischarge and the totality adjustments he made were unimpeachable, as was the decisionto make the end sentence of 1 year's imprisonment cumulative upon the sentenceimposed for Mr Parkes' drug offending.Result[73] The application for an extension of time to file an appeal is granted.[74] We allow two aspects of the appeal:(a) we will adopt a starting point of 9 years' imprisonment; and29 Coombs v Crown Law [2015] NZHC 584.(b) the MPI will be quashed.[75] In all other respects we agree with the uplifts and discounts made bythe High Court Judge and the imposition of the 12 months' cumulative sentence forattempting to dissuade witnesses from giving evidence.[76] The result is that the sentence of 11 years' imprisonment is quashed andsubstituted with a sentence of 9 years' imprisonment for the drug offending. To thatsentence is added the 1 year sentence imposed by Davison J for attempting to dissuadewitnesses from giving evidence. That sentence is cumulative.[77] The end sentence is therefore 10 years' imprisonment.[78] There is no MPI.Solicitors:Crown Law Office, Wellington for Respondent