MARTIN v R [2022] NZCA 285

MARTIN v R [2022] NZCA 285 [1 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA182/2021[2022] NZCA 285BETWEEN GREGORY JASON MARTINAppellantAND THE QUEENRespondentHearing: 15 February 2022Court: Goddard, Katz and Edwards JJCounsel: C G Tuck and T D A Harré for AppellantJ A Eng and T R Simpson for RespondentJudgment: 1 July 2022 at 11.00 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed.C The sentence of five years and six months' imprisonment is quashed andsubstituted with a sentence of two years' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Table of contentsPara NoIntroduction [1]Background [4]Pre-trial application to admit expert evidence [33]The trial [36]The Crown case [36]Mr Martin's evidence [37]Question trail [40]Verdict [46]Sentencing [47]Psychiatric report [47]Other reports [53]Sentencing decision [56]Conviction appeal [61]Appellant's submissions [61]Discussion [67]Sentence appeal [80]Appellant's submissions [80]Crown submissions [84]Discussion [89]Result [114]Appendix: Question TrailIntroduction[1] Mr Martin, an unusually naive and gullible man, fell for a criminal scam.He was persuaded to travel to Thailand to sign some papers which, he was told, wouldresult in payment of USD 10.5 million into his bank account. The "officials" he wasdealing with advised him (after he arrived in Thailand) that he would also need tobring back to New Zealand a suitcase of "gifts" to be delivered to a "payment officer"in New Zealand. Shortly before he was due to leave Thailand, Mr Martin was givena suitcase containing the supposed gifts. He was concerned about the possibility thatthe case contained hidden drugs. He exchanged texts about his concerns with hissister, and also with the scammers. But he did not find anything untoward when hesearched the suitcase, and the scammers reassured him everything was above board.He went to the airport and checked in his bags, including the suitcase, for his returnflight to New Zealand. On his arrival at Auckland he declared that he was carryingluggage for another person. The suitcase was searched, and approximately 1.4 kg ofmethamphetamine was discovered.[2] Mr Martin was charged with importing methamphetamine. He pleaded notguilty. Following a trial before Judge Moala and a jury in the District Court, he wasconvicted. Judge Moala sentenced him to five years and six months' imprisonment.1[3] Mr Martin appeals to this Court against both his conviction and sentence.Background[4] We begin by setting out the background in a little more detail.[5] In January 2019 Mr Martin received an email, purportedly from officials of the"Nigeria Payment Review Unit", advising him that he was a "beneficiary" and entitledto payment of USD 10.5 million. To obtain payment of that sum, he would need topay a documentation fee of USD 650.[6] The email could hardly have been a more obvious scam. It was full ofnonsensical and absurd statements, ungrammatical and strangely expressed.But Mr Martin appears to have taken it at face value. He responded, and engaged incorrespondence with an individual who identified himself as Sampson Kanu. He alsosubsequently corresponded with someone calling himself Charles Bee.[7] Mr Martin advised the "officials" that he could not pay the fee of USD 650:he was living paycheque to paycheque and had no spare money. Initially they offeredto reduce the amount he had to pay to USD 400, which was described as a "subsidizedrate approve [sic] by the United Nations (UN) and International Monetary Fund(IMF)". The email was headed "Do your best". Then, when he said he could not paythat amount, they pressed him to "be honest" and say what money he did have andcould pay. Mr Martin's response was "I am being honest sir". He explained he had$34.21 "to last me until next Wednesday".1 R v Martin [2021] NZDC 4099 [Sentencing notes].[8] The scammers then changed tack. In an email headed "DEVELOPMENT"they said he was "not expected to pay a dime in receiving of your funds and anybodywho asks you to pay money must be lying to you". They suggested that instead heshould travel to an unspecified destination where documents were held in "our othercorresponding vault" which he would need to sign in person. His travel expenses andaccommodation would be paid for. On his return to New Zealand he would receivethe USD 10.5 million.[9] Very few people would fall for such a blatant scam. But Mr Martin did.(And that is of course the way such scams work — they cast a wide net, and catch onlya few exceptionally naive, trusting and gullible victims.) His response was:Dear Mr Sampson,Wow ok sir, thank you for your email, yes I will be prepared to fly over to youto receive the funds, so where would I have to fly to ? And yes I will reimbursethe people who paid for my flights and accommodation, thank you once againsir, I will look forward to hearing from youKind regardsGreg Martin[10] Further correspondence ensued. Mr Martin was told he would be travelling toThailand. He was sent flight and hotel booking information. He took leave from hisemployment as a security guard and flew to Bangkok in March 2019. He expected tobe met on arrival at the airport, but was not. He took a taxi to the hotel that had beenbooked for him, which was some distance from the airport. When he arrived at thehotel around midnight he discovered that he could not check in until the following day.He had almost no money with him. He borrowed money from a member of thehotel staff to get a room at a nearby motel for the night. He contacted the scammers,who sent him reassuring messages and agreed to provide him with some money forliving expenses. He was sent 300 euros by Western Union money transfer. He usedthat to repay the money he had borrowed for the motel room, and for subsistence forthe next few days.[11] Mr Martin stayed at the hotel for a number of days, venturing out onlyoccasionally. The day before his return flight, he was advised to expect a visit from a"lady official" called Miss Jenny, who would bring the documentation for him to sign.She would also bring some "gifts" which, as already mentioned, he was to take backto New Zealand and give to a "payment officer".[12] The request to bring a bag back to New Zealand did belatedly arouseMr Martin's suspicion. He was concerned about the possibility the bag, or items in it,might contain drugs. He exchanged a number of text messages with his sister aboutthat risk. She advised him to search the bag "like they do on border control".[13] Mr Martin also expressed his concerns to the scammers. He wrote:What are these gifts I'm supposed to be taking back to New Zealand with me?I am concerned what these gifts are, if it is dodgy and illegal then I don't wantanything to do with it, I'm sorry Charles but this has kept me up most of thenight thinking about it, all I want to do is sign the documents and go home [14] The scammers assured him "this legal free". He needed to follow instructionsto get the payment. They said: "I am assuring you again to calm down".[15] On the day of his return flight Mr Martin prepared to travel home. He packedhis bag and was ready to go. He waited in the hotel for Miss Jenny to come.He exchanged anxious messages with the "officials", who assured him that she wouldbe with him very soon. Mr Kanu wrote (in caps):THE ONLY CONVINCED YOU NEED IS TO GET PAID OF THE FUNDSPLEASE YOU ARE IN LAST STAGE OF THIS TRANSACTIONTHEREFORE YOU MUST BE CAREFUL AND ENSURE YOU FOLLOWMY INSTRUCTION AND THAT OF MR CHARLES BEE. IN THAT GIFTYOU WILL HAND OVER TO THE PERSON IN NEW ZEALAND THEREIS AN ACCESS CODE MEANT FOR THE OFFICIAL ONLY THEPAYMENT AGENT IN NEW ZEALAND WILL CONFIRM THATTHROUGH THE GIFT TO BE ABLE TO KNOW THAT YOU ARERIGHTFUL BENEFICIARY OF THIS FUNDS. PLEASE AND PLEASEFEEL FREE AND DO YOUR BEST TO COOPERATE WITH THEOFFICIALS.HAVE YOU SIGN THE DOCUMENT? ONCE AGAIN FOLLOW THEINSTRUCTION TO ENABLE YOU GET PAID AS PROGRAMMED.[16] Eventually, not long before Mr Martin needed to leave for the airport,Miss Jenny arrived. She asked him to sign some forms. Mr Martin declined to do sountil he had a look inside the bag. He searched the bag. His evidence at trial was that:I took everything out, they told me there was supposed to be shoes and a watchin there plus clothes, there was only clothes in there. I emptied everythingout, I searched all the pockets, searched around, ran my hands over the insides,everything then I couldn't find anything else.[17] Mr Martin signed the documents, and Miss Jenny left.[18] Mr Martin gave evidence that he was still "pretty worried". He emailedMr Bee to say:She has been and left, she has given me a small suitcase, ive checked it but imstill not sure there could be drugs hidden in there, it has a funny smell to it[19] While he was in the taxi to the airport he made further attempts to communicatewith Messrs Bee and Kanu. He messaged them that he did not feel right about whatwas happening. They did not get back to him until he was more than halfway to theairport. They sent a mix of reassuring and firm messages, including the followingfrom Mr Kanu (again, in caps):FROM WHAT I HEARD FROM MR CHARLES BEE I AM NOT HAPPYWITH YOU AND TOTALLY DISAPPOINTING THAT YOU AREMISBEHAVING. YOU TO LISTEN TO MR CHARLES BEE IF YOUDON'T WANT ANY PROBLEM FROM THE OFFICIALS. YOUR FUNDSIS CLOSE TO BE RELEASED IN YOUR NAME. PLEASE CONTACTMR CHARLES BEE IMMEDIATELY AND APOLOGIZE TO HIM ANDOTHER INVOLVED PERSON.[20] Mr Martin told Messrs Bee and Kanu that he might just put the gifts in his ownsuitcase and abandon the one given to him by Miss Jenny. The scammers told himthat he could not do this. He would have to come back to the hotel and leave thesuitcase there for Miss Jenny. Mr Martin asked them to arrange for her to meet him atthe airport and he would give it to her there. But they would not agree to that.They told him he should continue as agreed.[21] Throughout this period Mr Martin was also messaging his sister, expressingconcern about the situation. One of his messages he sent from the taxi to his sistersaid that he did not feel at ease at all. Another said:Just emailed him and pretty much said to him what you said, I even added thatI might take the clothes out and put them in my bag and ditch the small one,just waiting for his reply[22] And, some six minutes later:He told me to leave the bag at the hotel and she will come back and pick it up,but I said that I'm halfway to the airport[23] Then, around half an hour after that:I'm getting him to call me, he still insist that I take it back, shall I, I have tocheck in, in 20 minutes[24] But as his sister told him, he did not have time to go back. The tight timingseems likely to have been designed to limit his ability to seek help or advice, or toback out.[25] When Mr Martin arrived at the Bangkok airport he checked in his bags,including the suitcase given to him by Miss Jenny. He continued to communicate withthe scammers, including a final message from Bangkok saying he was about to boardthe flight.[26] On arrival in New Zealand, Mr Martin messaged an overseas telephone numberprovided by the scammers, saying "I've just landed, wish me luck going throughcustoms".[27] On his arrival card, which he filled in on the plane, Mr Martin ticked the boxto say he was carrying a bag on behalf of somebody else.[28] Mr Martin was approached by customs officers after he had landed, as he hadbeen flagged in their computer system. He told them that he was carrying a bag onbehalf of another person. The customs officers searched his bags and foundapproximately 1.4 kg of powder concealed within the lining of the suitcase providedby Miss Jenny. Testing confirmed that the substance was methamphetamine with apurity of 80 per cent. The approximate street value of this quantity ofmethamphetamine was between $188,000 and $280,000.[29] Under cross-examination, Mr Martin accepted that at the time he was livingpaycheque to paycheque. Receipt of USD 10.5 million would have changed his lifecompletely. Mr Kanu had told him this was his best opportunity to become rich, andhe had believed that.[30] Mr Martin also accepted under cross-examination that he had specificallyconsidered there might be drugs in the suitcase. That suspicion remained with him allthe way until he came back to New Zealand. He accepted that he had remained incontact with Messrs Bee and Kanu throughout, including on his return toNew Zealand, and that he was hedging his bets. He knew that what he was doing wasrisky, but he thought there was still a chance he would make it to the hotel in Aucklandand that the USD 10.5 million would still be on the table.[31] While he was in the car with customs officers on the way to the police station,Mr Martin said he wanted to tell his whole story to enable Customs to "get the guysthat put him up to this". Subsequently, the lawyer acting for Mr Martin at the time ofhis arrest sent an email to Customs suggesting the possibility of a controlled delivery.However, that did not eventuate.[32] Mr Martin was charged with importing methamphetamine, a class Acontrolled drug.2Pre-trial application to admit expert evidence[33] Mr Martin's lawyers applied to admit expert evidence from Dr MarikaMcAdam and Ms Therese Bogart on human trafficking and online scams.The application was heard by Judge Moala on the first day of trial.2 Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a).[34] The application in relation to Ms Bogart's report was not pursued beforethe Judge.[35] The Judge declined the application to adduce evidence from Dr McAdam onthe first day of the trial, finding that the proposed evidence would not be substantiallyhelpful to the jury. The main issue to be determined at trial was whether Mr Martinhad the requisite reckless knowledge. The Judge could not see how Dr McAdam'sbrief would assist the jury with that narrow issue.3The trialThe Crown case[36] At trial the Crown case was presented on the basis that Mr Martin had beenreckless as to whether the bag contained illegal drugs. That is a sufficient mental statefor the offence of importation of a class A drug, as the Supreme Court held inCameron v R.4Mr Martin's evidence[37] Mr Martin gave evidence at trial in which he effectively confirmed eachelement of the Crown case. He agreed with almost every proposition put to him incross-examination.[38] In her sentencing notes, the Judge described what happened at trial as"bizarre".5 She could not understand why Mr Martin had not pleaded guilty andobtained a substantial discount for doing so, if he was willing to admit each elementof the offence. She saw counsel in chambers after Mr Martin gave evidence, and askedwhether Mr Martin's admissions meant that she should direct the jury to find himguilty. However the next day, when she saw counsel in chambers again, she agreedwith the Crown's submission that it would not be appropriate for her to do so.3 R v Martin [2020] NZDC 20189.4 Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 at [12]–[13]. See also Kupec v R [2018]NZCA 377 at [7] and [40].5 Sentencing notes, above n 1, at [10].[39] In the course of that chambers discussion with counsel the Judge told Mr Tuck,counsel for Mr Martin, that he needed to talk to his client and ensure he understoodwhat he had done. She said it was "bad before he got in [the witness box], but whathe has done is admitted all of the essential ingredients". The Judge said that she couldnot understand what the issues Mr Tuck was raising had to do with the essentialingredients of the offence that she would be directing the jury they needed to be sureof. She reiterated the need for Mr Tuck to talk to Mr Martin, presumably with a viewto considering whether even at that late stage he wished to change his plea.Question trail[40] The Judge provided the question trail for the jury to counsel in draft,for consideration overnight. She saw counsel in chambers before court on the finalday of the trial and asked (among other things) if they had any comments on thequestion trail.[41] Counsel for the Crown made some minor comments that are not relevant forpresent purposes.[42] The Judge specifically checked with Mr Tuck that in relation to the questionswhere she had added "not in dispute" he could confirm that that was correct. Mr Tuckconfirmed that there was no dispute in relation to those items. The only issue wasrecklessness.[43] Mr Tuck made one suggestion in relation to question 6, which noted that"'[u]nreasonable' actions are actions that a reasonable and prudent person would nothave taken". He proposed adding after that the words "in the situation that thedefendant found himself in". The Judge did not accept that suggestion: she consideredit would make the test less objective and wrong.[44] Mr Tuck added that he would be submitting that the reasonable person test isapplied in the factual matrix that is presented. The Judge noted that, and did notexpress any concern about Mr Tuck closing on that basis. He proceeded to do so.[45] The question trail that was provided to the jury is attached as an appendix tothis judgment.Verdict[46] As already mentioned, the jury found Mr Martin guilty on the charge ofimporting methamphetamine.SentencingPsychiatric report[47] The Judge sought a psychiatric report in relation to Mr Martin under s 38(1) ofthe Criminal Procedure (Mentally Impaired Persons) Act 2003.[48] The report set out in some detail Mr Martin's background and personalcircumstances as he recounted them to the psychiatrist. He reported experiencingserious abuse in his childhood, the details of which are not necessary to traverse here,although we note that the psychiatrist's view was that this may have impacted onMr Martin's self-esteem, ways of coping with stress, and maladaptive behavioursinvolving abuse of alcohol and cannabis in his adult life.[49] Mr Martin also described himself as an accident-prone child with a number ofepisodes of injuries. He said that when he was five years old, he was knocked over bya car and had to have a metal plate inserted in his head. He struggled to passexaminations at school and left from the fifth form when he was 17 years old. He didnot like going to school and found it hard to concentrate. After leaving school heworked as a butcher for seven years. When the butcher's shop at which he workedclosed, he found work as a security guard. He had continued work as a security guarduntil he was arrested on the methamphetamine importation charge.[50] The psychiatrist did not identify any signs or symptoms of a mood orpsychotic disorder. Mr Martin described some symptoms of anxiety, but they did notmeet the criteria for an anxiety disorder. Mr Martin described symptoms consistentwith alcohol and cannabis use disorder involving a problematic pattern of substanceuse leading to clinically significant impairment. But he said he had ceased usingcannabis some years earlier, and more recently had significantly cut down hisconsumption of alcohol. The report writer did not consider that Mr Martin had anabnormal state of mind. He did not meet the criteria of a mental disorder.[51] The psychiatrist added that the stresses that Mr Martin reported he was facingat the time of the offending, including a relationship break-up, having to move outfrom his house, and potential loss of his job as a security guard, would have increasedhis vulnerability to be exploited by a scam.[52] The psychiatrist recommended that Mr Martin would benefit from one-on-onecounselling to address any psychological issues which may have stemmed fromchildhood trauma. He would also benefit from participating in an alcohol and drugsprogramme.Other reports[53] The Court received the usual pre-sentence report from the probation service.[54] Mr Martin is of Māori descent. But no report pursuant to s 27 of theSentencing Act 2002 was provided addressing his cultural background.[55] Nor was any report obtained on Mr Martin's intellectual functioning, despitehis obvious naivety and lack of sophistication, his reported difficulties at school, andhis reported head injury as a child.Sentencing decision[56] In her sentencing notes the Judge began by setting out the background toMr Martin's offending. She recorded that Mr Martin would be sentenced on the basisthat he was reckless about the drugs being in the suitcase. That is, although he did notknow for certain that drugs were in the bag, he recognised the real possibility that therewere drugs in the bag, yet went ahead and brought the bag into New Zealand.66 Sentencing notes, above n 1, at [8].[57] The Judge noted that Mr Martin had admitted all the essential ingredients ofthe offence when he gave evidence.7 She added:[10] There is no issue here about you being addicted to drugs or beingunder some other mental disability that I can take into account. This was asituation where you needed money and you were prepared to run the risk bybringing in a large quantity of methamphetamine to this country, so yourlawyer's suggestion that you are just a victim of this offending is unrealisticand I do not accept it. I do not accept it having heard the evidence,in particular, your own evidence. The only thing that exercises my mind aboutthis case is why you did not plead guilty and take significant discounts.Instead, this went to trial and you gave evidence confirming the Crown's case.It was bizarre.[58] The Judge referred to this Court's guideline judgment on methamphetaminesentencing in Zhang v R.8 The amount of methamphetamine imported by Mr Martincame within band four of Zhang (500 g to 2 kg), which would mean a starting pointof eight to 16 years' imprisonment.9 But after considering Mr Martin's role, includingthe element of coercion involved in the circumstances of the importation, the Judgeagreed with the Crown's submission that Mr Martin should be placed in the lowerband three category. She adopted a starting point of seven years' imprisonment.10[59] The Judge then considered whether there were any mitigating factors relevantto Mr Martin. He did not have any previous serious convictions. There were a numberof letters of support from his family. The psychiatrist's report referred to hisvulnerabilities. That report did not suggest Mr Martin had any intellectual disabilityor other kind of personality disorder, other than that he is vulnerable to scams of thekind involved in this offending. As the Judge noted, he had been taken in by similarscams before.11 The Judge allowed a discount of 12 months for Mr Martin's previousgood record and another six months for the information in the psychologist's reportabout his background and his vulnerability.12[60] The end sentence was therefore five years and six months' imprisonment.137 At [9].8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.9 At [125].10 Sentencing notes, above n 1, at [13]–[14].11 At [16].12 At [16].13 At [16].Conviction appealAppellant's submissions[61] Mr Martin challenged his conviction on two grounds. He argued that:(a) The Judge erred by declining to admit the proposed expert evidencefrom Dr McAdam, and not allowing his defence that he was the victimof human trafficking to be put to the jury. Mr Martin submitted thatthis led to a miscarriage of justice.(b) A narrative of withdrawal from the offending emerged from theevidence at trial, and the jury should have been directed to consider thisas a possible defence.[62] The second of these issues was initially framed as an issue relating tojurisdiction. The argument appeared to be that Mr Martin had not taken any steps inNew Zealand in furtherance of the importation. But in written submissions and inoral submissions before us Mr Harré, who presented the argument on behalf ofMr Martin, quite rightly abandoned any argument about jurisdiction. Instead, hereframed the argument about the steps Mr Martin took in New Zealand on arrival interms of withdrawal.[63] Mr Harré submitted that in other jurisdictions, including the United Kingdom,a defence of human trafficking has emerged in recent years. However it was notnecessary to deal with the applicability of such a defence in New Zealand law in thecontext of this appeal. Rather, the submission was that because Mr Martin wasvulnerable, and that vulnerability had been exploited, he was a victim of humantrafficking for forced criminal activity. In those circumstances he lacked the requisitemens rea for the offence.[64] Mr Harré submitted that the contextual information in Dr McAdam's reportabout international developments in human trafficking law was essential in order toallow Mr Martin to counter the Crown's theory of recklessness.[65] Mr Harré said that the issue of trafficking should have been left to the jury tomake a finding of fact. In closing, the Crown had said it is not a defence to the chargethat the defendant was tricked or scammed. The Judge directed the jury to that effect.Mr Harré submitted that this was a misdirection. If the jury considered Mr Martin hadbeen scammed, and considered that the scam may have brought about a mistake as tofacts, then this may in law found a defence. The jury had been directed to considerwhat a reasonable person would have done in the circumstances. But, as becameevident through the course of the trial, Mr Martin was not a reasonable person.[66] Mr Harré accepted that no argument based on withdrawal from the offendingwas advanced by the defence at trial. But, he submitted, through the evidence at triala narrative of withdrawal emerged. Mr Martin, through his actions upon landing inNew Zealand, had taken every reasonable step available to him to prevent theimportation from occurring.Discussion[67] It was common ground at trial that Mr Martin was gullible and easily led.His vulnerability was illustrated by his willingness to engage in email correspondencewith the perpetrators of this obvious scam. It was underscored by his willingness totravel to Thailand in the hope of obtaining a windfall: a hope that no reasonable personwould have entertained. His approach to the scammers in connection with the bag hewas asked to bring back to New Zealand — seeking reassurance from them, when theywere plainly behind the request to bring it to this country — further confirms hisgullibility.[68] However Mr Harré struggled to articulate how that gullibility was relevant tothe appeal against conviction. He also struggled to explain how his argument aboutinternational developments concerning human trafficking, and Dr McAdam's reporton that subject, could be relevant to the issues put to the jury in the question trail.[69] If the scam had resulted in Mr Martin being deceived about the contents of thesuitcase, and wholly unaware of the risk that it might contain drugs, that would havebeen highly relevant to the matters for determination by the jury. But such an argumentwas hopeless on the facts, as confirmed by Mr Martin's own evidence.[70] We asked Mr Harré which questions the issue of trafficking might shed lighton. Mr Harré suggested that there should have been a preliminary question beforequestion 5, asking the jury to find as a matter of fact whether Mr Martin was a victimof human trafficking. Dr McAdam's evidence would, he submitted, be relevant to thatquestion. However Mr Harré was not able to articulate how that question would haveinformed the legal test reflected in subsequent questions in the question trail. Mr Harrésubmitted that it might have required some adjustment of questions 5 and 6. But heaccepted that the question trail, and those questions in particular, were consistent withthe approach adopted by the Supreme Court in Cameron.14 The question trail followedthe structure expressly approved by this Court in Kupec v R in the context of adefendant carrying a suitcase which the defendant suspected but did not know forcertain might contain drugs.15 The Supreme Court declined leave to appeal from thisCourt's decision in Kupec.16[71] Mr Harré accepted that question 5 was already framed in subjective terms,and was not able to suggest any possible changes to it. He focused his argument onquestion 6, suggesting that this should have been reframed in subjective terms.However as Mr Harré acknowledged, there is no New Zealand authority post-Cameronthat would support that approach. Nor had any argument to this effect been advancedin his written submissions.[72] The argument that the questions in the question trail in relation to Mr Martin'smental state should have been expressed differently is in our view quite hopeless. It isinconsistent with the decision of the Supreme Court in Cameron, and of this Court inKupec. Mr Harré did not seek to persuade us that those cases should be departed from.(Nor would it be appropriate for a Divisional Court of this Court to do so.)The question trail, and the Judge's direction to the jury, accurately reflected theauthorities on the required mental state for the offence.[73] Nor is it arguable that Dr McAdam's report was relevant to the questions forthe jury, let alone substantially helpful to them. Asking the jury to consider whether14 Cameron v R, above n 4.15 Kupec v R, above n 4, at [7]. See also at [40].16 Kupec v R [2018] NZSC 113.Mr Martin had been trafficked by reference to various international law definitionswould have been irrelevant, and confusing. Nothing in Dr McAdam's report couldhave assisted the jury to answer the questions that were properly before it. The Judgewas right to rule that this evidence was inadmissible.[74] We can deal briefly with the withdrawal argument. Mr Harré accepted that thisargument had not been raised by trial counsel. It was not raised in connection withthe question trail or in closing submissions. The appeal was not advanced on the basisof trial counsel error: indeed Mr Tuck, who appeared at trial, also appeared forMr Martin on this appeal.[75] Mr Tuck's decision as trial counsel not to pursue a withdrawal argument wasin our view wholly justified. On the evidence, the issue simply did not arise.Having set the importation of the suitcase into motion by checking it in at the airportin Thailand, it is not easy to see what Mr Martin could have done to effectivelywithdraw from participation in the offending. It may well be that withdrawal at thatlate stage simply was not possible as nothing that Mr Martin could do would becapable of undoing the effect of the steps he had already taken to import the drugs intoNew Zealand.17[76] But in any event, it is clear on the facts that Mr Martin did not unequivocallywithdraw. Even after he landed in Auckland, he was communicating with thescammers, and asking them to wish him luck as he went through Customs. As heacknowledged in cross-examination, he was still hoping that he might manage to clearCustoms and obtain the promised windfall.[77] Mr Harré did not pursue the withdrawal argument vigorously. He was rightnot to do so.[78] In summary, Mr Martin's conviction appeal is wholly without merit. It mustbe dismissed.17 See generally Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [134]–[138].[79] We add that we share the Judge's concern that Mr Martin, who did not denyany of the essential elements of the offending with which he was charged, nonethelessproceeded to trial with the result that he was not eligible for any guilty plea discounton sentencing. It is not easy to understand how a defendant in his circumstances whohad the benefit of sound legal advice could have adopted that course. We return tothis below.Sentence appealAppellant's submissions[80] Mr Harré submitted that the Judge should have referred to the expert reportsfrom Dr McAdam and Ms Bogart in connection with sentencing. Greater weightshould have been given to Mr Martin's gullibility, and the deception that was practisedon him.[81] In his written submissions, Mr Harré argued that Mr Martin should be treatedas having had limited involvement in the offence. His conduct within New Zealandmust have come down to a period of minutes only, being the time period betweenpicking his bags up from the conveyor belt and being approached by customs officers.However that point was not advanced before us. And rightly so: Mr Martin'sculpability fell to be assessed by reference to the whole of his conduct connected withthe importation, both within and outside New Zealand.[82] Mr Harré submitted that the discounts allowed for Mr Martin's vulnerability,and the other factors referred to in the psychological report, were insufficient.In particular, insufficient weight was given to the factors of duress and undueinfluence, which had resulted in Mr Martin's choice being overborne or diminished.[83] Mr Harré also submitted that Mr Martin had indicated a willingness toparticipate in a controlled delivery of the drugs. He said that there should have beena discount for this offer of cooperation.Crown submissions[84] Ms Simpson, who presented the argument for the Crown on the sentenceappeal, submitted that the Judge had adopted an orthodox sentencing approach, andhad not erred in the respects contended for by Mr Martin.[85] In assessing Mr Martin's role and culpability, the central question for the Judgewas the extent to which Mr Martin's offending was a result of deception orvulnerability, as against hope of gain. The Judge was well placed to make thatassessment, with the benefit of hearing the evidence at trial. It was clear the Judgetook Mr Martin's suggestibility and gullibility into account. She did not err in notreferring to the evidence of Dr McAdam or Ms Bogart. The evidence on traffickingand scams was not capable of adding anything to that analysis.[86] Ms Simpson submitted the Judge had recognised Mr Martin's lesser role in theimportation in selecting a starting point of seven years' imprisonment. As this Courtexplained in Zhang, elements of duress, naivety or other vulnerability may result inthe adoption of a lower band: that is what the Judge did in this case.18 The sentencingapproach approved by a Full Court of this Court in Zhang applied squarely toMr Martin, and accommodated issues such as naivety and gullibility. There was noneed to consider an alternative approach.[87] Nor can there be any criticism of the Judge's starting point of seven years,which reflected Mr Martin's vulnerability and lesser role, and the wider context of thescam. There was no need to provide a further discount for vulnerability, as that wasreflected in the Judge's assessment of Mr Martin's culpability, and the appropriatestarting point.[88] A further discount of six months to reflect all the information in thepsychologist's report was sufficient. There was no challenge to the 12-month discountfor Mr Martin's previous good record. A further discount for cooperation was notjustified; there had been very limited cooperation by Mr Martin after the offence wascomplete and had been detected.18 Zhang v R, above n 8, at [115] and [126].Discussion[89] The Judge adopted an orthodox sentencing approach based on the Zhangguidelines, which take as their starting point the quantity of drugs involved in theoffending, and expressly contemplate an adjustment to reflect the role played by theoffender.19 But as this Court expressly recorded in Zhang, the Supreme Courtemphasised in Hessell v R that sentencing must involve a "full evaluation of thecircumstances to achieve justice in the individual case".20 This is a very unusual case,in which the default approach in Zhang requires significant adjustment to reflect boththe circumstances of the offending and Mr Martin's personal circumstances.[90] We make three preliminary observations about the rationale behind the Zhangbands, and their application in this case.[91] First, as this Court emphasised in Zhang, role is an important consideration infixing culpability and thus the sentence starting point:21Due regard to role enables sentencing judges to properly assess the seriousnessof the conduct and the criminality involved, and thereby the culpabilityinherent in the offending, in the holistic manner required by Taueki andHessell.A lesser role may require movement not only within a band, but also between bands.22[92] Second, the sentencing bands for methamphetamine offending that hadpreviously been set by this Court in R v Fatu in 2006 were premised on knowledge ofthe elements of the offence.23 It was not until Cameron in 2017 that it was establishedthat recklessness sufficed in this context.24 The issue of liability based on recklessnessdid not arise in Zhang, and was not expressly addressed when the bands were adjusted.It follows that particular caution is needed in applying the Zhang bands uncritically to19 At [104].20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38], as cited in Zhang v R, above n 8, at[104] and [120].21 Zhang v R, above n 8, at [118], citing R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 (CA);and Hessell v R, above n 20.22 At [118].23 R v Fatu [2006] 2 NZLR 72 (CA).24 Cameron v R, above n 4.cases where conviction is based on recklessness rather than knowledge, fortwo reasons.(a) First, the mental state on which the conviction is based is inherentlyhighly relevant to culpability.25(b) Second, it is especially problematic to treat the quantity ofmethamphetamine carried as a primary determinant of sentence in acase where the person had no knowledge of the nature or quantity ofthe drugs involved in the offending. Quantity remains relevant, but asa matter of logic its relevance to culpability must be diminished in suchcases.[93] Third, and following on from the second point, quantity generally remainsrelevant even where an offender did not know the quantity of drugs involved — as isnot infrequently the case for couriers, "catchers" and others — because it is usually areasonable proxy for the social harm that has been or could be done by the drug,and for the illicit gains made from making, importing and selling it.26 But quantitydoes not always serve as a proxy for these important factors: for example, where aperson with a lesser role receives no illicit gains or receives a benefit that is not linkedto the quantity of drugs involved, quantity does not serve that second proxy function.[94] The present case engages all three of these factors. Mr Martin did not knowhe was carrying drugs. He did not want to carry drugs. He did not agree to do so.He did not seek to obtain any illicit gain. He did hope to receive a large (and fanciful)windfall from the scammers. But the offer of that windfall was not linked to any formof wrongdoing on his part. Once Mr Martin was told he was required to carry a bagback to New Zealand he recognised the risk it might contain illicit substances of somekind. But he made it clear he was not willing to be involved in any such enterprise.And he took three steps to reduce the risk of importing anything illicit.25 See generally AP Simester and WJ Brookbanks Principles of Criminal Law (5th ed,Thomson Reuters, Wellington, 2019) at [4.4].26 Zhang v R, above n 8, at [104].(a) First, he sought assurances from the "officials" that everything waslegal and above board. He was given those assurances. A prudentperson capable of exercising an ordinary degree of judgment andcommon sense would not have placed any trust in those assurances.But Mr Martin has amply demonstrated his inability to see through suchdeceptions.(b) Second, he searched the bag. It was only when he did not find anythinguntoward that he agreed to bring it back to New Zealand and give it tothe "payment officer". That second step was ineffective: the drugs hadbeen effectively concealed from him as well as from the authorities.(c) But third, and very importantly, Mr Martin proactively disclosed toCustoms that he was carrying a bag on behalf of someone else.That last step ensured the bag would be searched (this time, by peoplewho knew what they were doing) and any illicit substance detected.[95] Mr Martin did not know what quantity of drugs had been concealed in thesuitcase. As we have noted, he did not expect to receive any illicit benefit, let aloneone that was related to the quantity of drugs concealed in the bag. He took steps thatcumulatively ensured that the harm the drugs would have caused if they reached thestreets in New Zealand would not eventuate. So none of the rationales for treatingquantity as a primary determinant of sentence is directly applicable in this case.[96] To this must be added the very brief time during which Mr Martin was anunwitting participant in the criminal enterprise. He was stampeded into carrying thesuitcase shortly before he checked it in, and his role was effectively terminated by hisvoluntary disclosure to Customs on landing. This was not a case of offending that wasplanned in advance, or carried out over an extended period. His earlier travel toThailand at the scammers' behest involved no wrongdoing, and deserves sympathyrather than blame. Having travelled there, he found himself on the last day of his visitin a fast-moving, time-constrained, stressful and difficult position. He deserves someblame for his conduct in those few hours. But also, given his demonstrated naivetyand lack of sophistication and the pressure he was under, considerable sympathy.[97] On these very unusual facts, it seems to us that it would be arbitrary and unfairfor the quantity of drugs located by Customs to be given undue weight in determiningMr Martin's sentence. Role must loom larger. He is no more culpable than if thesearch had located a smaller quantity of drugs. Mr Martin's offending is not materiallymore culpable than that of the knowing courier of a much smaller quantity ofmethamphetamine: arguably, less so.[98] There are no comparable cases that have been considered by this Court.Perhaps the closest case considered in the High Court is R v King.27 In 2015 Mr Kingreceived an email telling him that someone with the same name had been left asubstantial inheritance in South Africa. If he travelled there and signed somedocuments to facilitate the release of the inheritance he would receive half the funds,being $15 million. He agreed to participate in this fraudulent enterprise. He travelledto South Africa and spent three weeks there. His host, a "Ms Elizabeth", provided himwith accommodation and transport and took him on excursions. On one excursion,Ms Elizabeth took him shopping, insisting that he buy clothes for himself and gifts togive to others. She also bought him a suitcase with four wheels which she said wouldbe easier for him to use due to mobility issues caused by a stroke he suffered in 2001.She packed the new clothes and gifts into the new bag and took away his old bag.[99] When Mr King arrived back in Auckland his bag was searched by Customs.They found 1.96 kg of methamphetamine with a purity of 46 per cent, concealed in ahidden compartment which could only be accessed by cutting the bag open. Mr Kinggave differing accounts to Customs officials. He first said that he knew the contentsof his luggage and that he had packed the bag himself. After the bag was searched andthe methamphetamine discovered, he said that Ms Elizabeth had packed the bag forhim. As van Bohemen J said, to that extent at least, he had been shown to beuntruthful.28 Telephone intercepts suggested strongly that Mr King had noinvolvement in setting up the importation, had no direct knowledge of what had beenplanned, and may have been coached to give his initial explanation to Customs forreasons he may or may not have appreciated.27 R v King [2018] NZHC 2540.28 At [9].[100] Tests showed that the stroke Mr King suffered in 2001 had significantlyimpaired his frontal lobe function, which is concerned with aspects of reasoning suchas recall and retention of memory, changing cognitive themes, abstract thinking andmaking adaptive judgments.[101] The psychiatrist who prepared a report for Mr King's sentencing concludedthat he suffered from a moderately severe neurocognitive disorder which caused himsignificant physical and cognitive impairment. Mr King's impaired frontal lobefunction impeded his ability to have "theory of mind" — the ability to attribute mentalstates to himself and to others, and to understand that others have beliefs, intentions,desires and perspectives that are different from his own. Naive innocence was aprominent characteristic of his cognitive functioning. The Judge considered thatnaivety was a significant factor in his offending.29 Mr King also had a record of fallingfor fraudsters and scams. On two previous occasions he had lost significant sums ofmoney to email scams asking for an upfront payment for which he was promised asubstantial sum in return.[102] The Judge adopted a starting point of five years' imprisonment.30That reflected the substantial quantity of methamphetamine involved (and itsrelatively low purity), Mr King's limited role, his state of mind, and his limitedintellectual capacity and understanding. Mr King's mental impairment was seen asrelevant to both the starting point and as a mitigating personal circumstance.31The quantity of drugs involved would have put Mr King in band four of the theneffective Fatu sentencing bands, indicating a starting point of between 12 years andlife imprisonment.32 But the lower purity of the methamphetamine imported,Mr King's conviction based on a mental state of recklessness, and his lesser role andmental impairment justified a starting point of five years' imprisonment.33 After takinginto account personal mitigating circumstances, the end sentence was 12 months'home detention.3429 At [17].30 At [45].31 At [25], citing Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [45] and [48].32 At [26], citing R v Fatu, above n 23, at [36].33 At [37]–[45].34 At [75]. See also R v Roche [2021] NZDC 25020, a scam case very similar to the present in whichthe Judge followed King and adopted a starting point of five years' imprisonment and imposed an[103] We agree that the factors identified by the Judge in King required the adoptionof a starting point well below what would have been produced by reference solely tothe quantity of the drugs involved in the offending. We note that in Zhang, which wasdelivered after King was decided, this Court adjusted the Fatu bands andre-emphasised the importance of role in determining an appropriate starting point.In light of Zhang, and the various factors at play in King, we consider that a similarcase today would attract a starting point of no more than four years' imprisonment.[104] The present case has obvious similarities with King. The level of naivety andgullibility seem much the same, though there has been no diagnosis of a specificneurocognitive disorder on Mr Martin's part.35 Mr King imported a higher quantityof drugs, and — importantly — did not make any disclosure to Customs to trigger asearch of his bag, and lied to Customs about packing the bag himself. Overall hisconduct was in our view more culpable than that of Mr Martin.[105] In the present case, having regard to the factors identified at [94]–[97] above,we consider that a starting point of three years' imprisonment appropriately reflectsthe culpability of the offending. This can be conceptualised as a move from band fourof Zhang to the lower end of band two36 to reflect the limited relevance of quantity inthis case and the multiple factors which distinguish the seriousness of Mr Martin'soffending from the paradigm case for band four, or even band three, intentionaloffending. As already explained, those factors require much greater weight to be givento role than to the quantity of drugs in this case.[106] We turn to personal mitigating factors. The Judge was right to give asubstantial discount of approximately 15 per cent for Mr Martin's previous goodcharacter. We agree that a discount in that range is appropriate. We therefore discountthe adjusted starting point by six months. We also consider a further discount ofsix months is needed to reflect the factors discussed in the psychiatrist's report,in particular Mr Martin's background, his childhood head injury and his extremeend sentence of home detention.35 It is unfortunate that the Court did not have the benefit of mental function investigations similarto those carried out in respect of Mr King, or of a s 27 report. The psychologist's report that wasobtained was limited in scope and did not address a number of potentially relevant issues.36 Band two applies to quantities of between 5 g to 250 g, and corresponds to starting points of two tonine years' imprisonment: Zhang v R, above n 8, at [125].vulnerability and gullibility. These bear directly on what society can reasonablyexpect of a person in his position. He should not be punished severely for errors ofjudgment that he had a diminished capacity (or no capacity) to avoid. An aggregatediscount of 12 months is appropriate.[107] That gives an end sentence of two years' imprisonment.[108] We consider that this end sentence fully reflects the circumstances ofMr Martin's offending. It is difficult to see how a more severe sentence ofimprisonment in this case could serve any of the sentencing objectives set out in s 7of the Sentencing Act. The goals of denunciation and holding Mr Martin accountablefor his foolish and reckless conduct are adequately served by the entry of a conviction,coupled with a less severe sentence.37 There is no need for a sentence of imprisonmentof five years and six months to deter Mr Martin from repeating his unfortunate error.Nor will imprisoning him for a period of that length deter other equally naive andgullible people from engaging in similar conduct — such people are likely to be fewand far between, and they will not be aware of or influenced by the specific level ofsentence imposed in such cases.38 Time spent in prison will not help to rehabilitateMr Martin or reintegrate him into the community — quite the reverse.39 None of theother goals is engaged.[109] One of us (Goddard J) considers that there is another available route to thesame result.40 Guideline judgments are just that — guidelines to the proper applicationof the Sentencing Act. But they do not displace the requirements of that Act. As thisCourt noted in Moses v R, "every guideline judgment recognises that judges mustapply the Act and may depart from the guidelines where appropriate".41 Nor do37 Sentencing Act 2002, s 7(1)(a) and (e).38 Section 7(1)(f).39 Section 7(1)(h).40 Katz and Edwards JJ endorse the summary of the relevant principles at [109] and [110]above. As for [111], they are of the view that if the application of the Zhang guidelines onmethamphetamine sentencing led to a lengthy sentence of imprisonment for Mr Martin, the finalstep of standing back and assessing the appropriateness of that sentence would likely necessitatea further adjustment to the end sentence in this case. Given, however, that the appeal was notargued on that basis, and a decision on the issue is not necessary to determine the appeal,they express no view on the likely extent of any such adjustment.41 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [34].guideline judgments displace the obligations of the sentencing judge under theNew Zealand Bill of Rights Act 1990. As the Chief Justice said in Fitzgerald v R:42In exercising the discretions conferred under the Sentencing Act, judges arebound by the Bill of Rights and must respect and affirm the rights andfreedoms preserved there. That is the effect of s 3 of the Bill of Rights.And so, as the Supreme Court observed in Hessell, the sentencing judge "in the end,must stand back and decide whether the outcome of the process followed is the rightsentence".43 Similarly, in Moses this Court noted that "guideline judgments emphasisethat the sentencing judge should stand back and inquire whether the final sentence iscorrect in all the circumstances".44 And as the Court went on to say:[49] As explained , guideline judgments such as this one promotetransparency of analysis and principled consistency of outcome, so furtheringobjectives of the Sentencing Act. We repeat that the ultimate question,however, is not whether an applicable guideline judgment is followed butwhether the sentence is a just one in all the circumstances. When answeringit the sentencer should stand back and consider the circumstances of offenceand offender against the applicable sentencing purposes, principles andfactors.[110] The final step of standing back and considering whether a sentence is moresevere than can be justified by reference to the purposes of the Sentencing Act is alsoconsistent with basic principles governing the exercise of statutory powers. It iselementary that the powers conferred by an Act must be exercised for the purposes forwhich those powers are conferred.45 The more coercive and rights-limiting theexercise of a power, the clearer the link that must be able to be demonstrated betweenthe exercise of the power and the relevant statutory purpose.[111] If the application of the Zhang guidelines on methamphetamine sentencing ledto a lengthy sentence of imprisonment for Mr Martin, the final step of standing backand assessing the appropriateness of that sentence would, in the view of Goddard J,necessitate a further adjustment. As we explained at [108], none of the purposes ofthe Sentencing Act requires a sentence more severe than the two-year term arrived atabove. Standing back from the detail of the sentencing analysis in this case, a sentence42 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [118] per Winkelman CJ.43 Hessell v R, above n 20, at [77].44 Moses v R, above n 41, at [37].45 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [51]–[53].in excess of two years' imprisonment cannot be justified as necessary to achieve anyof the purposes of the Act. Thus even if we had not arrived at that result through thereasoning process set out at [104]–[107], Goddard J would have arrived at the sameresult when he came to the end of the sentencing process and stood back to ask if theoutcome was the right sentence. Neither the sentence imposed in the District Court,nor any other sentence in excess of two years' imprisonment, could be described asthe just sentence in all the (unusual) circumstances of the present case.[112] We add that it is difficult to understand how Mr Martin ended up going to trialand missing out on the credit that would have been received for an early guilty plea.46The documentary evidence made conviction inevitable on the basis of recklessness asto the presence of drugs in the suitcase. So too did the evidence that Mr Martin wouldgive at trial, as it appears he planned to do. Particularly careful advice on the questionof plea was needed in this case, having regard to Mr Martin's naivety, and thesignificant adverse consequences for him of going to trial in circumstances where noneof the essential elements of the offending was in dispute. We find it difficult to believethat someone as biddable as Mr Martin would not have acted on advice that there wasno realistic prospect of avoiding a conviction, and his best option was to plead guiltyat an early stage.[113] It was not argued before us that Mr Martin's failure to plead guilty was theresult of trial counsel error. But something appears to have gone awry in the periodleading up to trial and, as a result, Mr Martin proceeded to trial — a decision that theJudge appropriately described as "bizarre".47 If Mr Martin had pleaded guilty at anearly stage, a sentence other than imprisonment might well have been considered.But he did not, and he has now spent almost 16 months in prison.Result[114] The appeal against conviction is dismissed.[115] The appeal against sentence is allowed.46 See Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298; aff'd R v Hessell, above n 20.47 Sentencing notes, above n 1, at [10].[116] The sentence of five years and six months' imprisonment is quashed andsubstituted with a sentence of two years' imprisonment.Solicitors:Crown Law Office, Wellington for RespondentAppendix: Question Trail