ZHANG v R [2019] NZCA 507

ZHANG v R [2019] NZCA 507 [21 October 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA606/2018[2019] NZCA 507BETWEEN JING YUAN ZHANGAppellantAND THE QUEENRespondentCA617/2018BETWEEN JACQUELINE JOSEPHINE HOBSONAppellantAND THE QUEENRespondentCA726/2018BETWEEN SHANE THOMPSONAppellantAND THE QUEENRespondentCA750/2018BETWEEN LOK SING YIPAppellantAND THE QUEENRespondentCA771/2018BETWEEN JONELLE RACHEL PHILLIPSAppellantAND THE QUEENRespondentCA783/2018BETWEEN LEANNE MAREE CRIGHTONAppellantAND THE QUEENRespondentHearing: 16–17 April 2019 (further submissions received 29 May 2019)Court: Kós P, French, Miller, Brown and Clifford JJCounsel: M A Corlett QC for Appellants Zhang and YipA J Bailey and E Huda for Appellant HobsonM J Phelps for Appellant ThompsonM N Pecotic for Appellant PhillipsA J D Bamford and E J Riddell for Appellant CrightonM J Lillico and M L Wong for RespondentA S Butler, J M Paenga and S W H Fletcher for Human RightsCommission as IntervenerJ R Rapley QC and E J Watt for New Zealand Law Society,New Zealand Bar Association and Auckland District Law Societyas IntervenersC W J Stevenson and E A Hall for Criminal Bar Association ofNew Zealand and Public Defence Service as IntervenersC P Merrick and E I Haronga for Te Hunga Rōia Māori oAotearoa as IntervenerJudgment: 21 October 2019 at 11.30 amJUDGMENT OF THE COURTCA606/2018 Zhang v RA The appeal against sentence is dismissed.CA617/2018 Hobson v RB The application for an extension of time to appeal is granted.C The appeal against sentence is allowed.D The sentence of nine years' imprisonment is quashed and substituted with asentence of seven years and 10 months' imprisonment.E The minimum period of imprisonment imposed is quashed.CA726/2018 Thompson v RF The application for an extension of time to appeal is granted.G The appeal against sentence is dismissed.CA750/2018 Yip v RH The application for an extension of time to appeal is granted.I The appeal against sentence is allowed.J The sentence of 16 years and six months' imprisonment is quashed andsubstituted with a sentence of 15 years' imprisonment.K The minimum period of imprisonment is quashed and substituted with aminimum period of imprisonment of seven years and six months.CA771/2018 Phillips v RL The application for an extension of time to appeal is granted.M The application to adduce further evidence on appeal is declined.N The appeal against sentence is allowed.O The sentence of four years and three months' imprisonment is quashed andsubstituted with a sentence of three years and two months' imprisonment.CA783/2018 Crighton v RP The application for leave to bring a second appeal is granted.Q The appeal against sentence will be allowed, but further submissions aresought on formal disposition of the appeal in light of [201] and [202] ofthe judgment.____________________________________________________________________REASONS OF THE COURT(Given by Kós P and French J)Table of ContentsPara NoA. INTRODUCTIONB. SUMMARY OF JUDGMENTC. MATTERS OF GENERAL APPLICATIONThe Fatu guideline judgmentCriticisms of Fatu by appellants and intervenersThe Crown's stanceThe functions and limits of guideline judgmentsLegislative frameworkMethamphetamine: history, use and harmMethamphetamine offending in New ZealandSentencing serious drug offending: deterrence,denunciation and accountabilitySentencing experience under FatuStage one analysis: factors relevant to setting the startingpoint for methamphetamine sentencingA new sentencing approach for methamphetamineoffendingStage two analysis: personal mitigating and aggravatingcircumstances not to be relegated in serious drugoffending sentencing(a) Addiction(b) Mental health(c) Duress or undue influence(d) Social, cultural and economic deprivationMinimum periods of imprisonment in serious drugoffending sentencingThe use of a wider range of legislative tools to treat drugoffenders in the course of sentencing and detentionWhether this guideline judgment applies retrospectively?D. INDIVIDUAL APPEALSLeanne Maree CrightonLeave to bring second appealBackgroundSentence appealedDiscussionResultJonelle Rachel PhillipsLeave to appeal out of timeFurther evidence on appealBackgroundSentence appealedDiscussionResultJacqueline Josephine HobsonLeave to appeal out of timeBackgroundSentence appealedDiscussion[1][10][12][12][21][33][44][49][67][81][85][94][101][118][130][139][151][154][155][164][175][187][192][193][195][196][197][198][203][204][205][206][207][209][213][228][229][231][232][235][238]Minimum period of imprisonmentResultJing Yuan ZhangBackgroundSentence appealedDiscussionMinimum period of imprisonmentResultShane ThompsonLeave to appeal out of timeBackgroundSentence appealedDiscussionMinimum period of imprisonmentResultLok Sing YipLeave to appeal out of timeBackgroundSentence appealedDiscussionMinimum period of imprisonmentResultE. RESULTSCHEDULE[243][245][246][248][252][255][261][264][265][266][267][269][271][274][281][282][284][286][290][293][304][309][311]A. INTRODUCTION[1] Since 2005 sentencing for methamphetamine-related offending has been basedon the guideline decision of this Court in R v Fatu.1 In December 2018, this Courtsignalled its intention to reconsider aspects of Fatu. It did so in response to concernsthat Fatu was resulting in disproportionately severe sentences and that certainassumptions made by the Court in 2005 no longer held true.[2] In a minute issued in December 2018, we identified the particular issues whichthe Court wished to address in the context of certain selected appeals. The issuesidentified were:2(a) The weight that should be given to the role played by the offender whenassessing culpability.1 R v Fatu [2006] 2 NZLR 72 (CA), governing sentencing for methamphetamine offending pursuantto s 6(1)(a)–(c) and (f) of the Misuse of Drugs Act 1975.2 Chen v R CA610/2017, 11 December 2018 (Minute of Kós P) at [2].(b) The relevance of an offender's personal circumstances, particularlyaddiction issues.(c) The approach to be taken to imposing minimum periods ofimprisonment for methamphetamine offending.[3] The Court also invited evidence as to the link between methamphetamineoffending and addiction, and the extent to which prison sentences and the length ofthose sentences has a deterrent effect on methamphetamine offending.[4] Ultimately six appeals were selected as raising the issues which the Courtwished to address. In addition to seeking submissions from the parties to the selectedappeals, submissions were sought from the Criminal Bar Association of New Zealand,the New Zealand Law Society, the New Zealand Bar Association, the AucklandDistrict Law Society, the Public Defence Service, the Human Rights Commission,the New Zealand Police, the New Zealand Drug Foundation, Te Ohu Rata o Aotearoa— Māori Medical Practitioners Association and Te Hunga Rōia Māori o Aotearoa —the Māori Law Society.[5] All of these organisations filed written submissions. The majority of them alsochose to make oral submissions at the subsequent hearing which, because of theimportance of the case, was heard by a full court of five judges.[6] We are most grateful for the submissions that were received, all of which wefound informative and helpful.[7] In section C of this judgment, we discuss matters of general application.[8] In section D, we consider each of the six appeals and apply the principlesarticulated in section C.[9] Before doing so, in section B we summarise the conclusions reached in thecourse of the judgment.B. SUMMARY OF JUDGMENT[10] In this judgment we conclude:(a) Sentencing must achieve justice in individual cases. That requiresflexibility and discretion in setting a sentence notwithstandingthe guidelines expressed in this and similar judgments.(b) In sentencing methamphetamine offending, quantity remains areasonable proxy both for the social harm done by the drug and theillicit gains made from making, importing and selling it. It is thereforean important consideration in fixing culpability and thus the stage onesentence starting point.(c) The Fatu quantity bands are therefore retained, but with somesignificant modifications.(d) In particular, we hold that the role played by the offender is animportant consideration in the stage one sentence starting point.Due regard to role enables sentencing judges to properly assessthe seriousness of the conduct and the criminality involved, and therebythe culpability inherent in the offending.(e) A more limited measure of engagement in criminal dealing deserves aless severe sentence than a significant or leading role. Diminished rolein methamphetamine dealing offending may result in an offendermoving not only within a band — as currently happens or is supposedto happen under Fatu — but also between bands.(f) Although we do not adopt the two grid matrix (involving quantity bandsand role categories) devised by the United Kingdom SentencingCouncil, we record that, in assessing role, sentencing judges may findit helpful to have regard to the Council's categorisations of role(into "leading", "significant" and "lesser"). In considering theindividual appeals before us, we make use of those categorisations.(g) The Fatu sentencing distinction between supply, importation andmanufacture is removed. Evaluation of role will satisfactorily accountfor functional differentiation.(h) The Fatu bands themselves are adjusted: there are now five bands(the fourth Fatu band being subdivided), and the sentencing start pointsfor bands one to four are lowered from those previously applying.(i) We observe that judges need to be willing to set starting points insentences beneath the stated entry points where culpability is truly low;most likely where an offender plays a lesser role in offending.(j) At stage two of the sentencing exercise, personal mitigatingcircumstances relating to the offender are applicable to all instances ofClass A drug offending, including methamphetamine dealing, as in thecase of any other offending.(k) Addiction shown to be causative of the offending is a mitigatingconsideration. It may in its own terms justify a sentence discount ofup to 30 per cent, although that is not to be treated as an absolute limit.Addiction will often combine with mental health issues, and the twomay need to be considered in combination, although withoutthe doubling-up of an otherwise appropriate discount. Addiction alsocalls for consideration of a rehabilitative response as part of sentencing.(l) Poverty and deprivation (potentially but not necessarily resulting fromloss of land, language, culture, rangatiratanga, mana and dignity) arematters that may be regarded in a proper case to have impaired choiceand diminished moral culpability. Such vulnerabilities(where established, and whether associated with addiction or not)require consideration in sentencing.(m) Counsel and sentencing judges are encouraged to make greater use ofthe power in s 25 of the Sentencing Act 2002 to adjourn sentencing toenable rehabilitation programmes to be undertaken. Use of that poweris appropriate where independent evidence suggests the offending wascaused by the factor(s) which the proposed programme is designed totarget.(n) Minimum periods of imprisonment must not be imposed as a matter ofroutine or in a mechanistic way. A reasoned analysis is required unders 86 of the Sentencing Act, both as regards the imposition of a minimumperiod of imprisonment and its length. If a practice has developed thatan end sentence of nine years' imprisonment automatically triggers aminimum period of imprisonment, such a practice must cease.(o) Deterrence, denunciation and accountability are likely to be at theforefront of decisions in drug cases involving the imposition of aminimum period of imprisonment. As a general rule, therefore, lengthyminimum periods of imprisonment are properly reserved for casesinvolving significant commercial dealing.(p) This judgment applies to all sentencings that take place after the issueof this judgment regardless of when the offending took place. It appliesto sentences that have already been imposed, if and only if twoconditions are satisfied: (1) an appeal against the sentence has beenfiled before the date the judgment is delivered and (2) the applicationof the judgment would result in a more favourable outcome tothe appellant.[11] Taken together, these are significant amendments to the sentencing regime thathas developed under Fatu. If they do not go as far as some parties and submitters mayhave expected, that is for two reasons. The first, as we note later, is that the courts arenot permitted to apply a more lenient sentencing scale than that set by the legislature.In 2003 the maximum sentence for methamphetamine dealing was increased to lifeimprisonment. The second is that methamphetamine offending is serious criminalconduct, which causes very serious physical, mental and economic harm to individualNew Zealanders. Some of the harm caused is described in this judgment. Those whowillingly participate in commercial-level dealing in methamphetamine will gain littlesuccour from this judgment. Its benefits lie more for those who take a lesser role inmethamphetamine offending, and particularly those who do so as a result ofvulnerability.C. MATTERS OF GENERAL APPLICATIONThe Fatu guideline judgment[12] The Fatu decision was prompted by the reclassification of methamphetamineunder the Misuse of Drugs Act 1975 from a Class B controlled drug to a Class Acontrolled drug.3 The reclassification occurred in May 2003 and was clearly intendedby Parliament to serve as a signal that methamphetamine was considered one of themost dangerous of drugs.4 It followed a recommendation given to the Minister ofHealth by the Expert Advisory Committee on Drugs. The reasons given for therecommendation were:5(a) The use and manufacture of methamphetamine in New Zealand isgrowing, seizures are increasing, and it has potential appeal tovulnerable populations.(b) There are pronounced long-term physical and psychological adverseeffects associated with methamphetamine abuse.3 R v Fatu, above n 1, at [1].4 See (13 May 2003) 608 NZPD 5663.5 The Expert Advisory Committee on Drugs (EACD) Advice to the Minister on: Methamphetamine(2002) at 3.(c) There are significant risks to public health from intravenous use ofmethamphetamine, as well as the dangers posed by illicit clandestinelaboratories.(d) There are few, if any, therapeutic applications for methamphetamine.(e) Methamphetamine has been linked to deaths both in New Zealand andoverseas.(f) There is a high physical and psychological dependence potential.[13] In the view of Parliament's Health Committee, reclassification would providethe Ministry of Health with an opportunity to work through non-regulatory measures,public education programmes and community action plans as well as giving the policethe power to search and seize without a warrant.6[14] Reclassification also meant a significant increase in penalties whichthe Committee saw as part of an overall strategy to "reduce the prevalence of the drugin New Zealand society over the long term".7 Whereas previously the importation,manufacture or supply of methamphetamine had been subject to a maximum penaltyof 14 years' imprisonment, the new maximum was imprisonment for life.[15] This posed a difficulty for sentencing judges. As noted by a divisional court inR v Arthur, there is "a huge difference in culpability between the case of a man whogives a point of methamphetamine to his wife and the case of Mr Big heading amammoth heroin importation or supervising a [methamphetamine] lab with amillion-dollar annual turnover".8 Yet each in theory was liable to imprisonment forlife. The Court also noted it was a matter of some regret that Parliament had not givengreater guidance as to the level of penalty. The Court then articulated some guidelinesfor sentencing judges to follow pending a formal guideline judgment from a permanentcourt which it clearly saw as imperative.96 Misuse of Drugs (Changes to Controlled Drugs) Order 2003 (select committee report) at 3.7 At 3.8 R v Arthur [2005] 3 NZLR 739 (CA) at [8].9 At [18]–[21].[16] The Permanent Court heeded that call in Fatu.10 The Fatu decision confirmedthat the courts were required to respond to the reclassification of methamphetamineand promulgated guidelines in the form of four separate sentencing bands. The bandsset out a range of starting points for sentences, first in relation to offending involvingthe supply or sale of methamphetamine, secondly for importation ofmethamphetamine and thirdly for manufacture of methamphetamine.11[17] As this Court explained, by use of the term "starting point" it meantthe sentences which reflect the culpability of the offending but before allowance ismade for aggravating and mitigating circumstances that are personal to the offender.12[18] The sentencing bands — which we detail below — were premised on thefollowing key findings:13(a) A drug manufacturer and importer can be regarded at least normally asbeing at the top of the supply chain.(b) The culpability of a manufacturer is greater than that of an importergiven the health hazards associated with the manufacturing process.(c) It is desirable for the bands to be based on objective criteria.(d) The most helpful measure of culpability is the quantity of the druginvolved rather than anticipated monetary yields. The latter wasproblematic not least of all because prices varied and were oftendependent on availability. Sentencing by monetary yield wouldproduce the perverse result that the greater the availability of aparticular drug the lower the sentencing level.(e) Objectivity and consistency are best served if the weight calculationsproceed on a basis that is referable to purity. The sentencing bands10 R v Fatu, above n 1, at [10].11 At [34], [36] and [43].12 At [21].13 At [22]–[32] and [42].should apply to the weight of what the market would regard as "P",a form of the drug in which the purity is of the order of or exceeds60 per cent.(f) Where an offender fits within any particular band will depend not juston the quantity and purity of the drug involved but also the role playedby the offender. Those who are primary offenders can expect startingpoint sentences towards the higher end of the relevant band with theconverse applying to those whose role is less significant.(g) The principles of sentencing referred to in s 8 of the Sentencing Act andthe mitigating and aggravating factors relating to the offending as setout in s 9 will also be highly relevant in fixing the starting point withina particular band.(h) In cases involving importation and supply, considerations ofcommerciality may be significant. Where there is a complete absenceof commerciality (as when small quantities are imported or supplied forpersonal consumption) and an absence of aggravating features such asgiving the drug to school children, sentencing judges may sentenceoutside the bands.(i) In contrast, methamphetamine manufacture always (or almost always)involves significant commerciality. The difficulties, expense and risksinvolved in manufacturing methamphetamine make it inherentlyunlikely that such an operation would be set up to produce drugs forpurely personal consumption.[19] The four bands can be conveniently summarised in the following table:Supply Importation ManufactureBand one — low level(less than 5 grams)2–4 years'imprisonment2.5–4.5 years'imprisonmentN/A — manufacturewill almost alwaysinvolve significantcommercialityBand two —commercial quantities(5 grams to250 grams)143–9 years'imprisonment3.5–10 years'imprisonment4–11 years'imprisonmentBand three — largecommercial quantities(250 grams to 500 grams)8–11 years'imprisonment9–13 years'imprisonment10–15 years'imprisonmentBand four — very largecommercial quantities(500 grams or more)10 years to lifeimprisonment12 years to lifeimprisonment13 years to lifeimprisonment[20] As will be apparent, the essential feature of the bands was that they involved agradated sentencing response referable to the quantity of methamphetamine involved.The borderline between bands one and two reflects the five gram weight at which thepresumption for supply occurs.15Criticisms of Fatu by appellants and interveners[21] Counsel for the appellants and the interveners were united in their criticismsof Fatu and the restrictive way it was said to have been applied by sentencing judges.[22] There were essentially three major concerns.[23] First, that sentencing for methamphetamine (and indeed other drug offending)was based on a flawed premise, namely that lengthy prison sentences are an effectivedeterrent both for the individual offender and others who might be like minded.The scientific evidence however was said to show that is not the case.14 In cases of manufacture, there is no band one and band two covers all quantities up to 250 grams.15 R v Fatu, above n 1, at [9]; and Misuse of Drugs Act, s 2(1A) and sch 5.[24] The focus on deterrence to the exclusion of other purposes of sentencing suchas rehabilitation had, it was said, led to excessively long sentences and an unjustifiableand unprincipled disregard of the personal circumstances of the offender. Of particularconcern were cases of lower level offending involving those who were dealing inmethamphetamine on a subsistence basis to fund an addiction. It was said that theappropriate sentence in such cases and the one that offered the only real prospect foran offender's rehabilitation was a non-custodial sentence involving treatmentprogrammes. However, Fatu precluded judges from being able to take that approach.[25] In the submission of all the appellants and interveners, the undue emphasisplaced on deterrence was contrary to the Sentencing Act, the prohibition ondisproportionately severe sentences in the New Zealand Bill of Rights Act 1990 andcontrary to the fundamental principle that sentencing is meant to be an individualisedprocess. Ignoring personal factors was also seen as perpetuating further inequalityparticularly in relation to Māori.[26] The second and related criticism of Fatu was that the bands were only basedon one criterion, namely quantity. It was acknowledged that quantity was a marker ofharm and thus relevant to an assessment of moral culpability but that it wasunprincipled and unjust for it to be the sole determinant. Submitters described thissingular focus as "distorting the sentencing process", causing rigidity, preventingproper assessments of criminality, removing judges' discretion and preventingthe courts from having any regard or proper regard to other factors which on any fairview should be highly relevant to culpability such as role and addiction. Under Fatu,the role of an offender was only relevant to their placement within a band. It couldnot take them outside a band.[27] The point was also made that the reliance on quantity presupposed thatthe offender was aware of the relevant quantity involved, whereas the reality was thatin many cases, particularly those involving offenders with lesser roles in the supplychain such as couriers, the offender had no idea.[28] The third concern related to the imposition of minimum periods ofimprisonment. Submitters complained these were frequently imposed in a routine,mechanistic way, and without reasons being given. If reasons were given, reliancewas typically placed on the need for deterrence. Yet, it was submitted, there is noevidence that the deterrent effect of a prison sentence is demonstrably enhanced byrequiring the offender to serve a minimum period of imprisonment. It was also saidthat judges regard an end sentence of nine years' imprisonment or over asautomatically attracting a minimum period of imprisonment.[29] According to the submitters, the approach being taken by sentencing judges tominimum periods of imprisonment was contrary to the relevant provision inthe Sentencing Act.16 The approach was also said to impact particularly harshly onforeign nationals who may not have any family living in New Zealand to support themwhile they serve their prison sentence. Language difficulties may also adversely affectthe ability of foreign nationals to access treatment programmes while in prison.[30] In addition to these concerns, submitters also pointed to changes that haveoccurred since Fatu regarding the nature of methamphetamine offending,the understanding of the effects of methamphetamine and community attitudes.These changes include the fact that manufacturing of methamphetamine is no longeras prevalent as it was at the time Fatu was decided and that some of the health hazardsassociated with manufacture are now considered to have been overstated. The vastmajority of methamphetamine is now imported and the quantities involved aresignificantly greater than they were a decade ago, as illustrated by the following table:Year 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018Number ofincidents12 21 27 16 41 110 170 242 245 201Quantity(kilograms)10.8 19.5 27.5 6.4 20.8 82.3 290.7 415.9 427.2 254.0Quantity(litres)2.3 20.4 2.5 160.0 4.6PotentialHarm($ million)13.4 24.2 34.1 7.9 25.8 101.9 360.2 515.3 529.3 314.7New Zealand Customs Service border seizures of methamphetamine(evidence produced by Bruce Geoffrey Berry)16 Sentencing Act 2002, s 86.[31] Another important development identified is a growing community acceptancethat drug addiction is a health issue and should be treated as such.[32] The submitters advanced various solutions to address the concerns.Some advocated a reduction in the starting points and/or an increase in the quantitiesof each band or the insertion of additional bands. Others advocated followingthe English approach and amending the Fatu bands to give role the same prominenceas quantity. Other submitters went further and suggested the Court should replacethe Fatu bands with multi-factorial bands.The Crown's stance[33] The Crown was opposed to any radical change and submitted that the currentband structure based on quantity should remain. That said, Mr Lillico acknowledgedorally that role was a very important sentencing consideration and that the Crown wasnot arguing that "role should not be formalised in [setting] the starting point".[34] However, it considered the concerns identified by the other submitters hadbeen overstated and that insofar as there were problems, these had largely resultedfrom the way some judges had applied Fatu, rather than the Fatu decision itself.Correctly interpreted, the Fatu framework was, it contended, sufficiently flexible tofairly address offending at each end of the culpability spectrum. In particular, Fatudid allow for sentencing outside the bands for reasons other than commerciality andthere were said to be a number of cases where courts had imposed community-basedsentences despite the offending falling within band one or two of the Fatu guideline.The Crown also challenged what it regarded as attempts to downplay the harm causedby methamphetamine.[35] While opposing significant changes, the Crown did however consider that thisreview offered the Court an opportunity to provide further valuable guidance in twoareas:(a) First, the way in which Fatu might be applied to cater more effectivelyfor offenders whose actions are driven by addiction, especially(although not exclusively) those whose offending sits at the lower endof the scale in terms of seriousness. There was, the Crown said, scopeto take into account substance abuse in assessing culpability where suchabuse is causative of methamphetamine offending and supported byevidence. Establishing a causal link was only likely to be possible atthe lower level of offending but even in more serious cases, discountscould be available for prospects of rehabilitation where for examplethe offender had engaged in successful treatment.(b) Secondly, the approach to be taken in the most serious dealing cases toensure effect is given to Parliament's intention to heavily penalise thoseresponsible for the worst methamphetamine offending. Apart fromquantity, sophisticated importation methods, large scale manufacture,transnational aspects, money laundering and organised crime were allindicators of the most serious offending. Life imprisonment should betreated as available particularly if the offender cannot rely on anaggregation of significant mitigating factors.[36] In support of these central submissions, the Crown advanced the followingpoints.[37] Deterrence is a legitimate sentencing purpose. Real life experience tells us thatit works for at least some people. However, it cannot in itself justify higher startingpoints nor the imposition of minimum periods of imprisonment. And Fatu did not sayotherwise. Indeed, deterrence is not even mentioned in Fatu.[38] Quantity is an objectively verifiable factor, the best marker of harm and arational measure of culpability for offending which poses a danger to public health.Quantity-based bands are principled. Harm inflicted on the community is particularlyimportant in sentencing for commercial drug offending because of its corrosive effecton communities.[39] Quantity is not however determinative. It should be recognised as only a guide,a first step or place holder to determining the starting point. Movement within bands— and where appropriate between bands — can be informed by consideration ofthe offender's role and other offence-related features including addiction.[40] Attributing equal weight to quantity and role would be problematic because ofthe difficulties in proving role. An initial focus on role in setting the starting pointrange would also risk rewarding the intentionally fractured organisational structurethat characterises many commercial drug supply operations. Further, treating role asa provisional marker for culpability would run counter to the way in which culpabilityis assessed in other contexts — for example, violence perpetrated by a group.[41] That is not to say role is unimportant. Currently judges do almost invariablymake some attempt to define an offender's role but there is a need for this to beformalised and greater guidance given by this Court. That is best done by the Courtproviding guidance through narrative as to how role should work. That is preferableto including role as part of a grid which tends to become mechanistic. The guidanceshould include a statement that in appropriate cases, role may take an offender outsidea band. The Crown would oppose firmly any taxonomy of roles — for example,"entrepreneur", "catcher" or "mule" — given the diverse nature of drug dealing.[42] There is not, nor should there be, special rules relating to personal factors indrug cases. Personal factors should and do carry the same weight as they do whensentencing for other types of offending.[43] The Court needs to be cautious in considering the approaches taken in otherjurisdictions. In the United Kingdom for example, there is no specific guideline formethamphetamine. Methamphetamine is not consumed in the United Kingdom in thesame way it is in New Zealand, it is not as prevalent and it does not have the samepurity. Australia is more akin to New Zealand and is the best reference point.In Australia, the courts have been careful to avoid a set of criteria for determining role.Most Australian states follow a quantity-based penalty regime.The functions and limits of guideline judgments[44] A survey of the history of sentencing practice in New Zealand shows that itwas not until the 1970s that this Court, following the example of its Englishcounterpart, started to exercise greater control over sentencing in the interests ofconsistency. Up until that point, the emphasis was very much on the sentencingjudge's discretion, so much so that in a 1950 decision, the Court actually rebukedcounsel for bringing other cases to its attention.17 Sentences were seldom overturnedon appeal.18[45] Since 1978, guideline or tariff judgments have been an important feature ofthis Court's supervision of sentencing practice. After the first guideline judgment wasissued in 1978, others followed detailing a range of sentences for various offences.19Over time, the judgments have become increasingly more complex, evolving from thepurely descriptive — setting ranges by reference to existing sentencing patterns —to the prescriptive — setting norms. The issuing of the judgments has sometimes beenin response to legislative change such as occurred with the reclassification ofmethamphetamine,20 changes in societal attitudes,21 or concerns about consistency ordifficulties in relation to a specific offence.22[46] Typically, the most recent guideline judgments identify aggravating features ofthe offence or offences under review and then set out sentencing bands with a rangeof starting points.23 Which band any particular case will fall into depends on thenumber and nature of the aggravating features present. In this regard, Fatu is differentfrom other guideline decisions because as already discussed placement in a band turnson one criterion. To assist sentencing judges, the judgments typically give examplesof how the bands might be applied in given fact situations.[47] The prime justification and function of the guideline judgment is to promoteconsistency in sentencing levels nationwide.24 Like cases should be treated in like17 R v Brooks [1950] NZLR 658 (CA) at 659.18 Although this was not an absolute rule: see, for example, R v Radich [1954] NZLR 86 (CA).19 See, for example, R v Pui [1978] 2 NZLR 193 (CA) (sexual violation by rape); and R v Urlich[1981] 1 NZLR 310 (CA) (dealing in Class A drugs).20 R v Fatu, above n 1.21 See, for example, R v Mako [2000] 2 NZLR 170 (CA) at [2].22 See, for example, R v Terewi [1999] 3 NZLR 62 (CA); R v Wallace [1999] 3 NZLR 159 (CA); andR v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.23 R v Taueki [2005] 3 NZLR 372 (CA); and R v AM (CA27/2009), above n 22.24 Sentencing Act, s 8(e).manner, similarly situated offenders should receive similar sentences and outcomesshould not turn on the identity of the particular judge.[48] Consistency is not of course an absolute and in the guideline judgments,this Court has been careful to emphasise that sentencing is still an evaluativeexercise.25 The guideline judgments are just that, "guidelines", and must not beapplied in a mechanistic way. The bands themselves typically allow a significantoverlap at the margins. Sentencing outside the bands is also not forbidden, althoughit must be justified.26Legislative framework[49] Methamphetamine is classified as a Class A drug under the Misuse of DrugsAct.27 As a consequence, the maximum penalty for any dealing-related offence isimprisonment for life.28 This resulted from a reclassification of the drug inMay 2003.29 The underlying rationale for change reflected concern over the increasedprevalence of use of methamphetamine in New Zealand, its links to criminal offending(particularly violent offending) and the physical and psychological harm caused tomembers of the community. In debate the Associate Minister of Health referred to theneed to "send a message" that methamphetamine is "unacceptable", and to the needfor increased penalties "to address the harms that methamphetamine is causing in ourcommunities".30[50] The reclassification of methamphetamine as a Class A drug, and the associatedmaximum penalty of life imprisonment, has meant that methamphetamine offendinghas necessarily been treated in the courts as serious criminal offending.31In consequence, long sentences of imprisonment may be warranted. Particular weighthas been given to the purpose of deterrence, this being seen as the dominant sentencing25 See, for example, R v Taueki, above n 23, at [10]; and R v AM (CA27/2009), above n 22, at [36]and [79].26 R v Taueki, above n 23, at [27]; R v Fatu, above n 1, at [32], [34] and [36]; R v AM (CA27/2009),above n 22, at [83]; and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [62].27 Misuse of Drugs Act, sch 1.28 Section 6(1)(a)–(c), (f) and (2)(a).29 Misuse of Drugs (Changes to Controlled Drugs) Order 2003.30 (13 May 2003) 608 NZPD 5663.31 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [5]; and McLean v R [2015] NZCA 101 at[53].principle for serious drug offending.32 One consequence has been that there has beenseen to be less scope for recognition of personal mitigating factors.33[51] Yet Class A drug offending varies significantly. At one end lies whatMr Corlett QC called the "head of the snake", often beyond the jurisdiction ofNew Zealand authorities, masterminding manufacture or importation, anddistribution. At the other end lies a solo mother in a provincial town, given freemethamphetamine by a drug member to addict and indebt her, who is then forcedherself to deal the drug to get by. In between lies gang leaders, entrepreneurialcriminals willing to deal with gang leaders, gang members, couriers (or "mules") whomay or may not apprehend the scale of the contents of their bags or bodily passages,and members of the community who may or may not be committed criminals and whomay well be addicted themselves to the drug. As this Court observed in R v Arthur,shortly after the 2003 reclassification, each in theory is liable to imprisonment forlife.34 The condign maximum penalty available reflects the harm caused bymethamphetamine, but unlike murder for instance, no distinction is drawn bythe legislation between inflicted and attempted harm.35 The offence is complete bymere possession for supply; it does not require supply itself. The maximum penaltyof life imprisonment therefore creates some difficulty.[52] Penalties close to the maximum have rarely been imposed. Life imprisonmenthas been imposed on Class A drug offenders in five instances, and in only twoinvolving methamphetamine offending. In Chen v R this Court upheld a sentence oflife imprisonment for the importation of 96 kilograms of methamphetamine wherethe offender had served a lead role in the operation.36 The other case is R v Rhodeswhere the life sentence for a principal actor in a large scale manufacturing and supplyoperation, involving the manufacture of 1.4 kilograms of methamphetamine, was alsoupheld by this Court.3732 See, for example, R v Jarden, above n 31, at [12]–[14].33 Parata v R [2017] NZCA 48 at [6].34 R v Arthur, above n 8, at [8].35 The maximum penalty for attempted murder is 14 years' imprisonment: Crimes Act 1961,s 173(1).36 Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [179].37 R v Rhodes [2009] NZCA 486 at [98]–[99].[53] Section 6 of the Misuse of Drugs Act provides:6 Dealing with controlled drugs(1) Except as provided in section 8, or pursuant to a licence under thisAct, or as otherwise permitted by regulations made under this Act, noperson shall—(a) import into or export from New Zealand any controlled drug;or(b) produce or manufacture any controlled drug; or(c) supply or administer, or offer to supply or administer, anyClass A controlled drug or Class B controlled drug to anyother person, or otherwise deal in any such controlled drug;or(d) supply or administer, or offer to supply or administer, anyClass C controlled drug to a person under 18 years of age; or(e) sell, or offer to sell, any Class C controlled drug to a personof or over 18 years of age; or(f) have any controlled drug in his possession for any ofthe purposes set out in paragraphs (c), (d), or (e).(2) Every person who contravenes subsection (1) commits an offenceagainst this Act and is liable on conviction to—(a) imprisonment for life where a Class A controlled drug wasthe controlled drug or one of the controlled drugs in relationto which the offence was committed:(b) imprisonment for a term not exceeding 14 years whereparagraph (a) does not apply but a Class B controlled drugwas the controlled drug or one of the controlled drugs inrelation to which the offence was committed:(c) imprisonment for a term not exceeding 8 years in any othercase.(2A) Every person who conspires with any other person to commit anoffence against subsection (1) commits an offence against this Act andis liable on conviction to imprisonment for a term—(a) not exceeding 14 years where a Class A controlled drug wasthe controlled drug or one of the controlled drugs in relationto which the offence was committed:(b) not exceeding 10 years where paragraph (a) does not applybut a Class B controlled drug was the controlled drug or oneof the controlled drugs in relation to which the offence wascommitted:(c) not exceeding 7 years in any other case.(3) [Repealed](4) Notwithstanding anything in Part 1 or section 39 or section 81 ofthe Sentencing Act 2002, where any person is convicted of an offencerelating to a Class A controlled drug—(a) against paragraph (c) or paragraph (f) of subsection (1); or(b) against paragraph (a) or paragraph (b) of subsection (1)committed in circumstances indicating to the Judge or courtan intention to offend against paragraph (c) of thatsubsection,—the Judge or court shall impose a sentence of imprisonment(within the meaning of that Act) unless, having regard to the particularcircumstances of the offence or of the offender, including the age ofthe offender if he is under 20 years of age, the Judge or court is of theopinion that the offender should not be so sentenced.(4A) Without limiting anything in subsection (4) or in Part 1 or section 39or section 81 of the Sentencing Act 2002, where any person isconvicted of an offence relating to a Class A controlled drug ora Class B controlled drug against any of paragraphs (a), (b), (c), and(f) of subsection (1), the Judge or court, if he or it decides to imposea sentence of imprisonment, shall consider whether or not he or itshould also impose a fine.(5) For the purposes of paragraph (e) of subsection (1), if it is proved thata person has supplied a controlled drug to another person he shall untilthe contrary is proved be deemed to have sold that controlled drug tothat other person.(6) For the purposes of subsection (1)(f), a person is presumed until thecontrary is proved to be in possession of a controlled drug for any ofthe purposes in subsection (1)(c), (d), or (e) if he or she is inpossession of the controlled drug in an amount, level, or quantity at orover which the controlled drug is presumed to be for supply(see section 2(1A)).(7) [Repealed][54] As can be seen, s 6(4) provides a presumption for imprisonment in cases ofmanufacture, importation, supply, offer and possession for supply of a Class A drug.The provision mandates the end-sentence outcome, rather than the starting point interms of the universal three-stage sentencing approach now followed inNew Zealand.38 As this Court observed in R v Arthur:39[20] In methamphetamine cases, the sentencing Judge must first determinewhether imprisonment is appropriate. There is a presumption in favour ofimprisonment under s 6(4) of the Misuse of Drugs Act, a subsection whichoverrides the general principles to be found in the Sentencing Act.[55] In (it has been said) relatively exceptional circumstances, the presumption forimprisonment may be displaced.40 Youth, for instance, is a material consideration.41Similarly, realistic prospects of rehabilitation may displace the presumption.42There is a significant body of cases in relation to the approach to be taken to theimposition of home detention in cases of Class A drug offending, given the existenceof the presumption of imprisonment. In R v Hill this Court noted that sentences ofhome detention have usually been imposed in cases where the offender has acceptedresponsibility for the offending by entering a guilty plea and the sentencing judge hasbeen persuaded that the offender's real prospects of rehabilitation were sufficient tojustify a sentence of home detention.43[56] It may also be observed that a recent amendment to the Misuse of Drugs Actconfirms that there is discretion whether to prosecute possession cases (not involvingdealing), and that a prosecution should not be brought unless required in the publicinterest.44 Section 7(6) goes on to provide that in assessing the public interest inprosecution, "consideration should be given to whether a health-centred or therapeuticapproach would be more beneficial". Although this does not apply to s 6 dealingcharges with which we are here concerned, it nonetheless indicates an increasingrecognition that some aspects of offending need to be viewed through a therapeuticlens. As we go on to discuss, that is particularly the case when addiction hascontributed to the offending.4538 Per R v Taueki, above n 23, at [8], [28] and [42]–[44], stage one sets a starting point based on anobjective evaluation of the gravity of the offending. Stage two adjusts that starting point byreference to aggravating and mitigating considerations personal to the offender. Since Hessell v R[2010] NZSC 135, [2011] 1 NZLR 607, stage three allows a discrete discount for a plea of guilty.39 R v Arthur, above n 8.40 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [43]; and R v Honan [2015] NZCA 94 at [29].41 Misuse of Drugs Act, s 6(4), as recognised in Morton v R CA273/92, 23 October 1992.42 R v Hill, above n 40, at [39].43 At [30].44 Misuse of Drugs Act, s 7(5), inserted by the Misuse of Drugs Amendment Act 2019, s 6.45 See below at [142]–[150].[57] We turn now to the relevant provisions of the Sentencing Act. We drawparticular attention to ss 7, 8, 9, 16, 25 and 27.[58] Sections 7 to 9 of the Sentencing Act set out the general approach to be taken.Section 7(1) sets out a series of purposes for which a Court may sentence an offender.None need be given greater weight than any other.46 In the context ofmethamphetamine sentencing, particularly relevant purposes include holdingthe offender accountable for harm, the promotion of a sense of responsibility,denunciation of the conduct, the deterrence of the offender and other persons fromcommitting similar offending, the protection of the community, and assistance inan offender's rehabilitation and reintegration. We will discuss deterrence later in thisjudgment. However, the absence of likely deterrence from criminal offending(whether because of perceived non-risk, perceived super-profit opportunity, orimpaired capacity to perceive at all because of addiction or some other cause) does notof itself compel a more lenient sentence. Rather, it requires the acknowledgement ofthat limitation, and a close analysis of the remaining purposes identified. And as thisCourt observed over 60 years ago in R v Radich:47The fact that punishment does not entirely prevent all similar crimes shouldnot obscure the cogent fact that the fear of severe punishment does, and will,prevent the commission of many that would have been committed if it wasthought that the offender could escape without punishment, or with only alight punishment.[59] Section 8 of the Sentencing Act sets out 10 principles which (it has been said)are largely a codification of prior case law and which are to be considered in respectof every sentencing decision.48 Many of these principles are obvious, such as accountbeing taken of the gravity of the offending, including the degree of culpability ofthe offender, and the seriousness of the type of offence in comparison with other typesof offences. But we draw particular attention to s 8(c) and (d) which require impositionof the maximum penalty prescribed by statute for the offence if the offending is"within the most serious of cases for which that penalty is prescribed", and a penaltynear the maximum "if the offending is near to the most serious of cases for which46 Sentencing Act, s 7(2).47 R v Radich, above n 18, at 87.48 Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters)at [SA8.01].that penalty is prescribed", unless "circumstances relating to the offender make thatinappropriate".[60] Against that consideration stands the requirement in s 8(g) that the court mustimpose the least restrictive outcome appropriate in the circumstances. Likewise, s 16of the Act, which provides that when considering the imposition of a sentence ofimprisonment for any particular offence the court "must have regard to the desirabilityof keeping offenders in the community as far as that is practicable and consonant withthe safety of the community", and must not impose a sentence of imprisonment unlesssatisfied that the purposes in s 7(1)(a)–(c), (e), (f) and/or (g) cannot be achieved by asentence other than imprisonment. But those two provisions take effect subject to thecontrary presumption in s 6(4) of the Misuse of Drugs Act, discussed earlier.49[61] In this context, the observations of this Court in R v Finau, an attempted murdercase, are apposite:50[22] Parliament has indicated to the Court that, in the words of s 8(d) ofthe Sentencing Act 2002, it must impose a penalty near to the maximumprescribed for the offence if the offending is near to the most serious of casesfor which that penalty is prescribed, unless circumstances relating tothe offender make that inappropriate.[23] This instruction must be firmly borne in mind. It can of course betempered, if appropriate, by reference to the offender's personalcircumstances; as for example where the offender has diminished intellectualcapacity or understanding: see s 9(2)(e) of the Sentencing Act. But the extentto which the sentence can be so tempered will depend on the weight ofthe mitigating factor or factors, when viewed against the level of seriousnesswhich brought the case within s 8(d) in the first place.[62] Section 8(h) is important also in requiring that the court must take account ofthe particular circumstances of the offender that mean a sentence (including ofimprisonment) would be disproportionately severe. That provision connects also tos 9 of the New Zealand Bill of Rights Act which requires that punishments not be"disproportionately severe". We agree with the submission that Mr Butler made to uson behalf of the Human Rights Commission that the Sentencing Act is thereby madeconsistent with standards required by the New Zealand Bill of Rights Act and by49 R v Arthur, above n 8, at [20].50 R v Finau (2003) 20 CRNZ 333 (CA).the International Covenant on Civil and Political Rights, ratified by New Zealand in1978.51[63] In the context of s 8 we also take cognisance of s 8(i) which provides thatthe court:must take into account the offender's personal, family, whanau, community,and cultural background in imposing a sentence or other means of dealing withthe offender with a partly or wholly rehabilitative purpose; There is a connection between that provision and s 27 of the Sentencing Act whichprovides a right to present information to the court on the personal, family, whānau,community, and cultural background of the offender, how that background may haverelated to the commission of the offence, and how that, along with family, whānau, orcommunity support, may be relevant to the nature of the sentence imposed. We willcome back to that subject later in the judgment.52[64] We need also to draw attention to s 9(3) of the Sentencing Act which providesthat despite s 9(2)(e), the court must not take into account by way of mitigation thefact that the offender was at the time of committing the offence affected by thevoluntary consumption or use of alcohol or other drug (save for bona fide medicalpurposes). That, plainly, is potentially material to whether offender addiction is amitigating consideration. We address this later in the judgment.53[65] Finally, we refer to s 25 of the Sentencing Act. That provides:25 Power of adjournment for inquiries as to suitable punishment(1) A court may adjourn the proceedings in respect of any offence afterthe offender has been found guilty or has pleaded guilty and beforethe offender has been sentenced or otherwise dealt with for any 1 ormore of the following purposes:(a) to enable inquiries to be made or to determine the mostsuitable method of dealing with the case:(b) to enable a restorative justice process to occur, or to becompleted:51 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976).52 See below at [161].53 See below at [142]–[150].(c) to enable a restorative justice agreement to be fulfilled:(d) to enable a rehabilitation programme or course of action to beundertaken:(da) to determine whether to impose an instrument forfeiture orderand, if so, the terms of that order:(e) to enable the court to take account of the offender's responseto any process, agreement, programme, or course of actionreferred to in paragraph (b), (c), or (d).(2) If proceedings are adjourned under this section or under section 10(4)or 24A, a Judge or Justice or Community Magistrate havingjurisdiction to deal with offences of the same kind (whether or not thesame Judge or Justice or Community Magistrate before whomthe case was heard) may, after inquiry into the circumstances of thecase, sentence or otherwise deal with the offender for the offence towhich the adjournment relates.[66] There was argument before this Court on the appeal that this provision isinsufficiently used, particularly in the case of methamphetamine offenders who arethemselves addicted. In consequence we asked Mr Lillico to make enquiries ofCrown solicitors as to the approach taken where applications are made under s 25 forthe adjournment of sentencing. We discuss that matter also later in the judgment.54Methamphetamine: history, use and harm[67] Expert evidence was tendered in this appeal. We refer here particularly tothe evidence of Professor David Nutt of Imperial College London,Detective Superintendent G J Williams and Detective Sergeant D T Lyons.[68] Methamphetamine is a derivative and close relative of amphetamine. Both arestimulants that act by releasing dopamine and noradrenaline in the brain.55That release leads to the "high" these drugs produce, explaining effects such asalertness, insomnia, and in some cases paranoia.[69] Methamphetamine was discovered over one hundred years ago. It was initiallyused as a treatment for asthma, though is rarely used for that purpose today. In somecountries (such as the United Kingdom) it is still licensed for the treatment of54 See below at [178].55 Dopamine and noradrenaline are termed "neurotransmitters".narcolepsy, a neurological disorder of sudden sleep onset. Professor Nutt observesthat patients with that disorder have often been on a course of methamphetamine fordecades with little evidence of harm. In some countries, also, methamphetamine isused to treat Attention Deficit Hyperactivity Disorder (ADHD). Professor Nuttobserves that a significant proportion of people using methamphetamine apparentlyrecreationally are in fact self-medicating for ADHD.[70] During the Second World War there was widespread use made ofmethamphetamine by Japanese and German forces to sustain wakefulness, enablingsoldiers to fight for days on end without sleep. Periods of long sleep were needed torecover when methamphetamine use ceased. Some of the characteristic signs of heavymethamphetamine use became apparent during this period, particularly hallucinationsof bugs under the skin and paranoia. Allied forces also used a stimulant, amphetaminesulphate, which is shorter acting and less powerful. It produced fewer adverse sideeffects.[71] Methamphetamine has a longer action than amphetamine — up to 24 hoursafter a single dose, twice as long as amphetamine. It is cleared more slowly fromthe body and tends to be recycled in the brain.[72] Methamphetamine can be made in a form called "free-base". This form canbe smoked, which gives users a very fast hit and produces very high brainconcentrations predisposing users to psychiatric consequences such as addiction andparanoia. Methamphetamine taken instead in the form of a tablet (which is the formused for the medicinal purposes referred to earlier) does not give such a dramaticstimulation or "high". That form has a lower propensity to result in dependence andaddiction. But when used in solution form for injecting or free-base form for smoking,the impact is very fast and strong, and has a much greater propensity for dependenceand addiction.[73] As we will see, higher quantities of methamphetamine have been seized inNew Zealand in recent years. At the same time the market price of methamphetaminehas fallen somewhat. Perhaps counter-intuitively, set against those statistics, the useof methamphetamine in New Zealand has reduced. Evidence before the Courtdemonstrated that, as at 2009, methamphetamine use peaked in New Zealand in about2001 at about five per cent of the population. This proportion had reduced by 2009 toabout two per cent. Provisional health survey data for 2015 indicated that 0.9 per centof the New Zealand population aged 16 to 64 years had used amphetamines(including methamphetamine). Reported use remained higher for males (1.2 per cent)than females (0.7 per cent). As at 2015/2016, Māori were 3.4 times more likely tohave used amphetamines in the past year than non-Māori.56[74] Some 43 per cent of methamphetamine consumed is excreted in the form ofdrugs and metabolites. This has enabled indirect scientific study as to consumptionlevels. The New Zealand Police-funded "Drugs in Wastewater" project has beenundertaken by the Institute of Environmental Science and Research (ESR).Originally it sampled wastewater in Christchurch, Auckland's North Shore andWhangārei monthly. The project has now expanded to 38 sites around New Zealand:21 are tested monthly and 17 are tested bi-monthly. The project covers 74 per cent ofthe population of New Zealand, but national results can readily be extrapolated.Similar testing exists in Europe, and Australia has also introduced such a scheme.[75] The results of this study are startling. For instance, methamphetamine druguse per person is more than twice as high in Whangārei as it is in Auckland andChristchurch (where the numbers are relatively similar). Auckland, which contains33.5 per cent of the New Zealand population, appears to consume approximatelyeight kilograms of methamphetamine a week or a little over 400 kilograms a year.[76] Purity levels of methamphetamine seized by law enforcement agencies inNew Zealand are comparatively high relative to other countries at an average of73 per cent. Methamphetamine in a "base" state takes liquid form. The maximumpurity of methamphetamine in solid form is 80 per cent. Typically methamphetaminein solid form is achieved by mixing 80 per cent methamphetamine with 20 per centhydrochloride. It is common for methamphetamine to be "cut" or adulterated withother products, however, such as isopropylbenzylamine, the dietary supplementdimethylsulphone, or caffeine.56 Ministry of Health Amphetamine Use 2015/16: New Zealand Health Survey (December 2016).[77] Evidence before us was that the use of methamphetamine produces a "rush" or"hit" lasting between five and 30 minutes. Heartbeat races and metabolism,blood pressure and pulse soar. A sensation of pleasure and elevated mood arises.The user then enters a "high stage" lasting between four and 16 hours where they feelenergised, talkative, will dominate conversation and become argumentative.Typically the user will attempt to maintain that through what is known asthe "binge period" of the methamphetamine addiction cycle, where for some three to15 days they will consume more methamphetamine. Hyperactivity, sleep deprivationand paranoia frequently arise during this period. A heavy user of methamphetaminemay use up to a gram of methamphetamine a day during this period. However furtherdosing fails to recreate the initial euphoric high; frustration, unpredictability andpotential for violence emerge. The user then experiences what is calledthe "crash stage" where the user's body is exhausted and needs to rest and sleep.A temporary period of normality then arises, which may last two to 14 days, followedby a 15 to 90 day withdrawal period where the user may experience anxiety, insomnia,cravings and depression, together with mood swings and poor concentration.Some users become suicidal. This period is often followed by re-consumption offurther methamphetamine.[78] Methamphetamine abuse has both short and long-term adverse health effects.The release of noradrenaline from the peripheral nervous system leads to increasedheart rate and blood pressure that can cause heart attacks and strokes. Smoking orinjection in particular generates significant dependency levels. As Professor Nuttobserved in his evidence:Methamphetamine dependence/addiction is a brain disorder that onceestablished is hard to overcome. It does not go away on its own by simplystopping someone using methamphetamine. The desire to use is often presentfor years after stopping because the memories of the effects ofmethamphetamine, especially when smoked or injected, are so powerfullypleasurable that they never go away. The desire to use again, even when theperson knows that to do so will lead them back into the addiction, or even toprison, can be profound and in many cases will overwhelm their intention notto use.[79] Significant external social costs also arise from methamphetaminedependencies. These include criminal offending to fund addiction, and the breakdownof personal and employment relationships. A vivid example of the externalsocial harm associated with methamphetamine was given by Detective SuperintendentWilliams. It related to the Kawerau community in the Bay of Plenty. In 2017 a policeoperation focused on the Kawerau Mongrel Mob who were alleged to be in control ofthe sale of methamphetamine in that district. The gang was said to have a strategydesigned to sell into a very vulnerable community. During the course of theinvestigation 6.5 per cent of the community were identified as usingmethamphetamine, considerably above the national average. Significant socialdeprivation was observable, with children going without food, adequate clothing andschool supplies, and household incomes being used to fund methamphetamine use.In March 2018 search warrants were executed at 38 addresses in the Bay of Plentydistrict. Identified methamphetamine users were encouraged to engage with treatmentservices. Iwi and community leaders were assisted to effect change following thedisruption of the supply of methamphetamine to that community.Detective Superintendent Williams observed:The effect of Operation Notus has had a significant positive impact onthe Kawerau community. In the first three months after the termination therewas a 34% reduction in overall recorded crime, which included a 38% drop inviolence offences, 46% drop in dishonesty offences, and 46% in drugs inantisocial offences. After 6 months this had levelled out to a 12% reductionshowing a sustained impact. The community is mobilising to rid the town ofmethamphetamine. In January 2019 a hikoi was organised by a group callingthemselves the 'Anti P Ministry.' Multiple people continue to seek treatmentfor their addiction. Local Iwi are developing their own response based onthe Te Ara Oranga Northland Project. The Bay of Plenty Police are alsoworking right across the region with Iwi and partners in an attempt to combatthe impact of methamphetamine abuse.[80] The Ministry of Health has attempted to analyse the social harm associatedwith methamphetamine use through an index called the "Drug Harm Index".It includes three categories of social cost and nine components. They are: (1) personalharm (premature death and loss of quality of life); (2) community harm (family andfriends, acquisitive crime, organised crime, reduced tax base); and (3) interventioncosts (health, Police and Customs, and Courts and Corrections). The Drug Harm Indexcalculates the total social costs associated with methamphetamine in 2016 atapproximately $1,239,000 per kilogram. As Detective Superintendent Williamsexplained:57In Whangārei approximately 46 grams of methamphetamine was being usedevery day. At a price of $500 per gram over the period results were obtained,this means methamphetamine dealers were receiving approximately $23,000a day, $161,000 per week or $8.3 million in cash per year. The amountidentified by ESR would equate to an approximate consumption of16.7 kilograms a year. This equates to a social harm of $20.7 million intothe Whangārei community per year.In Auckland, the figures for which were given earlier, the social harm cost associatedwith methamphetamine is approximately $515 million per annum.Methamphetamine offending in New Zealand[81] The evidence of Detective Superintendent Williams was that nationalmethamphetamine seizures have increased from 13 kilograms in 2012 to923 kilograms in 2016. In 2016 a single operation resulted in the seizure of494 kilograms of methamphetamine, the import of which had been attempted from afishing boat. Distribution is described as "entrenched" with supply fromAsian organised crime syndicates. But more recently syndicates based inNorth America (sourcing methamphetamine from Mexican cartels) and Africa havealso emerged as risks. The evidence was that there is now a supply glut offshore, andNew Zealand is seen as a promising target because of relatively high retail prices.[82] Distribution in New Zealand is similarly entrenched with ethnic gangs such asthe Mongrel Mob and Black Power, and outlaw motorcycle gangs such as the Rebels,Comancheros and Bandidos. Detective Superintendent Williams notes that some ofthe latter gangs have been significantly bolstered by the deportation from Australia ofpeople in key leadership roles. There is, also, evidence that some overseas organisedcrime groups have attempted to establish their own distribution networks inNew Zealand, particularly in Auckland, operating independently ofNew Zealand-based organised crime groups.57 Using data obtained from the Drugs in Wastewater project.[83] Police analysis shows that the number of frequent drug users who purchasemethamphetamine from gang members has increased from 36 per cent in 2013 to50 per cent in 2014. A reported phenomenon is of distributor gangs addictingsolo mothers for the purpose of inducing them to deal drugs for gangs.Many consumers of methamphetamine do not wish to purchase from gang members.The addicted solo mother then sells methamphetamine on behalf of the gang in orderto fund her own drug use and repay accruing debt.[84] The number of people charged in court for drug offences generally almosthalved between 2009 and 2018, falling from 11,219 to 6,516. That reduction isconsistent with a general reduction in crime in New Zealand. Yet methamphetamineoffending has gone the other way: charges almost doubled in the same period, risingfrom 1,766 in 2009 to 3,087 in 2018. In 2018 just less than half of all drug charges incourt concerned methamphetamine offending. Similarly, during the same period thenumber of people sent to prison for all offences fell slightly from 8,716 in 2009 to7,990 in 2018. The number of people sent to prison for drug offending generally hasremained broadly stable. Against that, the number of people sent to prison formethamphetamine offending more than doubled, from 387 in 2009 to 858 in 2018.Sentencing serious drug offending: deterrence, denunciation and accountability[85] Deterrence is one of several stated purposes of sentencing in s 7 ofthe Sentencing Act.58 Its consideration is permissive: it may or may not be taken intoaccount in individual sentence-setting. Logically, the extent to which it will be takeninto account depends on the extent to which a sentence may reasonably be expectedto either deter the community generally from similar offending or deter the individualspecifically from doing so.[86] In the context of methamphetamine offending, the expert evidence fromProfessor Simon Mackenzie (for the Crown) and Associate Professor Nathan Berg(for the appellants) suggested that severity of sentencing had at best a modest deterrenteffect. Professor Mackenzie observed:58 Sentencing Act, s 7(1)(f).The evidence for imprisonment as a specific deterrent is reasonably clear:it does not work. At best, imprisonment has no specific deterrent effect.It may even make reoffending more likely. There is evidence that punishment has a general deterrent effect on crime.Much about this evidence base is still in dispute, and exactly how this effectoccurs remains uncertain. It is clear that the possibility of deterrence dependson the 'sanction risk perceptions' of would-be offenders. Sanction riskperceptions can be divided into two categories: perception of certainty ofsanction, and perception of severity of sanction. Among these two, certaintyseems on the current available evidence to be by far the more importantvariable. Lengthening the sentence of imprisonment applicable to a given crime isnot likely to achieve a significant deterrent effect in respect of that crime.At best there is only a modest deterrent effect from increasing already longprison sentences. More likely there is no significant effect in such cases.Increasing the length of shorter sentences may have more deterrent power thanincreasing the length of already long sentences, but (a) it is probably still notsignificant enough to be a driver of sentencing policy, (b) doing so raises ahost of other problems beyond simply the question of deterrence and (c) evenin such cases, increasing the certainty of apprehension and punishment will bea more powerful deterrent than increasing the length of shorter sentences.[87] Associate Professor Berg observed:Attempts at deterring drug supply with long prison sentences are extremelyexpensive and largely ineffective. They lead to a gross misallocation ofexpenditures on imprisoning low-level drug resellers for whom imprisonmentis especially counterproductive, and for which there is considerable evidencethat exposure to prison increases rates of future offences. For this largesubpopulation of low-level drug re-sellers (i.e. not producers), the theory ofspecific deterrence is contradicted outright. First-time drug-sales offenders,who could have been rehabilitated outside of prison (and gainedself-sufficiency in lawful employment), instead become lifetime criminals ordependent on government assistance [88] We have referred already to the increasing number of convictions formethamphetamine sentencing.59 The increase may perhaps suggest the 2003adjustment to the maximum penalty has had little deterrent effect. For the CriminalBar Association and Public Defence Service, Mr Stevenson and Ms Hall submitted tous that shows deterrence is "largely illusory" in methamphetamine sentencing.These submissions echoed those of counsel for the appellants. Mr Corlett, forinstance, submitted that absent any credible evidence to the contrary, and in light ofthe evidence set out before the Court, "it can be assumed that increases in the severity59 See above at [84].of punishments for [methamphetamine] offending are unlikely to reduce rates of[methamphetamine] offending in New Zealand".[89] However, we consider the issue of deterrence in methamphetamine sentencingis more complex than these submissions suggest. We make four points.[90] The first is that it is wrong to wholly detach deterrence from denunciation,accountability and community protection when responding to a crime as harmful asdealing in methamphetamine. That deterrence is in issue at all, given the gravity ofthe harm, is first and foremost a product of the enormous profitability ofthe methamphetamine trade. That cannot in itself be a reason to moderate sentencing.The contrary might reasonably be observed. Deterrence is also put in issue is wherethe offender is vulnerable, by reason (for instance) of addiction, mental healthdisability, economic deprivation, duress or undue influence. That considerationreduces the relevance of individual, rather than general, deterrence. It is not aconsideration of general application, compelling moderation of sentencing in all cases.In the usual way, post-Taueki, it raises an issue for consideration after objectiveoffending sentence starting points are considered (at stage one) when (at stage two)considerations personal to the offender are considered.60[91] Secondly and relatedly, for the reasons given in our decision in R v Radichquoted at [58] above, it remains the case that a failure to impose appropriate, but notunduly severe, sentences of imprisonment can only encourage the pernicious trade inhuman misery which dealing in methamphetamine is. Certainty of prosecution may,as Professor Mackenzie observed, have greater deterrent effect than increasingsentence lengths. His observation echoes that of Catherine the Great in 1767:"The most certain curb upon crimes is not the severity of the punishment, but theabsolute conviction in the people that the delinquents will be inevitably punished".61Nonetheless, Professor Mackenzie did observe that there is evidence punishment hassome general deterrent effect on crime, but that there are factors that make deterrenceless likely to work in relation to some drug offenders. The profitability of60 R v Taueki, above n 23.61 Catherine II The Grand Instructions to the Commissioners Appointed to Frame a New Code ofLaws for the Russian Empire (1767) at [222].commercial-scale drug offending, and its associated sophistication, makeapprehension and sanction remote for those who lead the trade. But the propositionthat they — and their ability to recruit others — should then be rewarded by moderatesentencing does not appeal.[92] Thirdly, the principle of general deterrence is said to be based on a theory of"rational choice". That is, that the offender may weigh up the pros (profit andpleasure) and cons (detection and punishment) in choosing whether or not to offend.It may well be that in drug offending in particular, the perceptions of risk are relativelylow, and the perceptions of reward relatively high — at least for those engaged at asignificant level in the distribution chain. But the principle of rational choice is lessrelevant, and general deterrence is less likely, where that rational choice is constrainedby mental disorder (so that the choice may not be rational at all), addiction, poverty,duress or other supervening vulnerability. The evidence before us, and some ofthe cases we are considering, demonstrate that these vulnerabilities are present inmuch methamphetamine offending. It is here, and in the case of offenders who havea very limited role in a distribution chain, that enlightened sentencing policy shouldfocus.[93] Fourthly, the legislative lead in s 8 of the Sentencing Act remains plain:the courts are not permitted to apply a more lenient sentencing scale than that set byParliament. That is the simple consequence of New Zealand adopting a whollystatutory criminal code. In 2003 the maximum sentence for dealing-relatedmethamphetamine offending was increased to life imprisonment. The effect of s 8(c)is that this Court must impose that maximum penalty if the offending is within themost serious of cases for which the penalty is prescribed. The effect of s 8(e) is thatthere must be a logical and consistent sentencing scale between the most serious ofcases (attracting life imprisonment) and the least serious of cases (which, subject tos 6(4) of the Misuse of Drugs Act, may attract a non-custodial sentence).These considerations preclude radical departure from existing sentencing principles,and indeed from Fatu itself. But it does not mean that, within those constraints, somemodifications in approach may not be made.Sentencing experience under Fatu[94] The Crown helpfully provided the Court with a schedule of sentencing appealdecisions in which the guideline judgment in Fatu had been applied. These aredecisions both of this Court and the High Court. We have taken the Crown data andhad it depicted graphically for each of the four Fatu sentencing bands. The resultantgraphs appear in the schedule to this judgment. The next few paragraphs should beread with those graphs at hand.[95] What is depicted is the methamphetamine quantity concerned and the startingpoint adopted on appeal. For ease of analysis, we have split the band four sentencinginto two graphs. So the last graph shows band four sentencing only for quantitiesunder 10 kilograms.[96] Some observations may be offered in relation to the results when depictedgraphically.[97] First, there is a very wide variation — as much as 100 per cent — betweensentences involving identical quantities. Those variations will reflect, in part, whetherthe activity is supply, importation or manufacture. Fundamentally, however,the variation reflects judicial appreciation of culpability based on differing rolesplayed, taken in combination with quantity.[98] Secondly, bands one and two show the median sentence rising as quantity alsorises. That is what one might expect, if quantity is a proxy for harm or potential harm.Further, one would expect notional starting points in a lower band to rise towards theopening starting point in the band immediately above as one approached the quantityborderline between the bands. But that progression is less evident in band threesentencing, and in band four sentencing once one passes a quantity of one kilogram.[99] Thirdly, there are a number of instances in bands two, three and four wherecourts have fixed starting points below the Fatu guideline starting points. This isevident also in a number of first instance sentences. As we note later, these variationsreflect judges' appreciation of low culpability given the very limited role played bythe offender in those cases.62[100] Fourthly, notably however, at least among the appellate decisions referred toin the Crown's table, there are no band one decisions where the starting point has beenset below the Fatu guideline opening starting point of two years. That is surprising,given quantities of less than five grams are involved. In Fatu itself this Court said thatsupply in small quantities "where there is no commerciality and no other aggravatingfeatures" may result in starting points outside — that is to say, below — band one.63The presumption in s 6(4) of the Misuse of Drugs Act, it should be recalled, talks aboutthe imposition of a sentence of imprisonment. It does not require that sentence to betwo years or more. The potential for conversion of a lesser sentence to home detentionshould not distort the initial sentencing process in setting the starting point.Stage one analysis: factors relevant to setting the starting point formethamphetamine sentencing[101] In Fatu, this Court, drawing on an earlier divisional decision in R v Arthur, said"[w]e have decided that the quantity of the drug involved in the offending (rather thananticipated monetary yields) provides the most helpful measure of culpability".64In consequence the Court established sentencing bands which were based onoverlapping weight of methamphetamine of a purity of 60 per cent or more. The Courtwent on to say that:65[w]here an offender fits within any particular band will depend not just onthe quantity and purity of the drugs involved but also the role played bythe offender. Those who are primary offenders can expect starting pointsentences towards the higher end of the relevant band, with the converseapplying to those whose role is less significant.[102] The courts in Fatu and Arthur however lacked the benefit of the range ofargument presented to this Court.62 See below at [107].63 R v Fatu, above 1, at [34].64 At [26]; and R v Arthur, above n 8.65 At [31].[103] It may be observed that the High Court of Australia has taken a differentapproach. In Wong v R, that Court said that the use of weight of a narcotic as the chieffactor in determining sentence, even where other factors enable movement within thatrange or even outside of it, was wrong in principle.66 Gaudron, Gummow andHayne JJ described as a "false premise" that "gravity of the offence can usually(perhaps even always) be assessed by reference to the weight of the narcoticinvolved".67 We think there is some force in this criticism. However, we are notdisposed to dispense with quantity as the first determinant of sentencing. Nor did theburden of submissions we received suggest it should be dispensed with.Quantity remains a reasonable proxy both for the social harm done by the drug andthe illicit gains made from making, importing and selling it.[104] Quantity is valuable in assessing culpability, as this Court observed in Fatu,but it alone cannot determine culpability. The Crown accepts that that is so.Quantity is highly relevant to culpability, because it is an indicator of harm or potentialharm to the community. It may also be indicative of commerciality, which is deservingof greater denunciation. But as the Crown accepts, there are other considerations thatflow into the assessment of culpability on an objective basis, in setting a starting pointunder the first stage of sentencing under the Taueki model. The variations in sentencestarting point for the same quantity are explicable on the basis of differing degrees ofculpability, and that is primarily justifiable on the basis of differences in role playedby the offender. As the Supreme Court emphasised in Hessell v R, sentencing mustinvolve a "full evaluation of the circumstances to achieve justice in the individualcase".68[105] Even the finite bandwidths in Fatu are vast: seven years in the case ofband two manufacturing. In the case of band four supply, the range is 10 years to life.Setting culpability within bands of that breadth and generality requires not just anumerical scaling based on quantity alone, but at the very least some effort bythe sentencing judge to assess the relative role played by that offender in contrast toothers sentenced earlier for the same band and category. Nothing else could be said66 Wong v R [2001] HCA 64, (2001) 207 CLR 584 at [72]–[73].67 At [73].68 Hessell v R, above n 38, at [38].to meet the requisite "full evaluation of the circumstances to achieve justice inthe individual case" required by Hessell.[106] We have noted already that Fatu provides that where an offender fits withinany particular band will also depend on role.69 And that the judgment in Fatu notedthat supply in small quantities "where there is no commerciality and no otheraggravating features" might result in starting points below band one.70 Apart from thatindication, the decision does not sanction other extra-quantitative shifts out of band.[107] Mr Corlett drew our attention to 10 recent decisions of the High Court whererole has been influential in judges fixing starting points below the bands otherwiseapplicable under Fatu. One example is R v Kupkovic, where a Mr Hoe was sentencedas a party to the manufacture of 607 grams of methamphetamine.71 Although thatwould place Mr Hoe in band four, in fact the Judge, Brewer J, a very experiencedcriminal judge, fixed a starting point of 10 years' imprisonment at the very bottom ofband three, taking into account Mr Hoe's limited participation in the offending.72[108] In another decision, R v Keogh, the defendant also was a party tomanufacturing methamphetamine, again well within band four.73 But Moore J, againa very experienced criminal judge, fixed a starting point within band three, observing:[28] Placing too heavy a reliance on the amount of methamphetamine youwere involved in producing would result in an excessively high starting point.It cannot be overlooked [that] you were involved in just two manufacturesspanning a period of less than a month. In that regard I accept you were verymuch a secondary participant. The Crown too accepts this. As already noted,I am also mindful that addiction rather than avarice drove you to becomeinvolved in this dark trade.[109] There are other decisions to similar effect.7469 R v Fatu, above n 1, at [31].70 At [34].71 R v Kupkovic [2014] NZHC 1946 at [49].72 At [54].73 R v Keogh [2016] NZHC 508.74 See, for example, R v Burdett HC Auckland CRI-2007-092-5673, 20 November 2007 at [23]; R vBaldwin HC Palmerston North CRI-2008-054-1871, 10 September 2009 at [11]; R v Soles [2014]NZHC 2665 at [9]; R v Hughes [2015] NZHC 22 at [14]–[17]; R v Pene [2016] NZHC 2787at [29]; R v Harland [2017] NZHC 1226; R v Wellington [2018] NZHC 2196 at [41]–[43]; andR v King [2018] NZHC 2540 at [42] and [45].[110] It is patent that role has a fundamental impact on culpability, and one that ismore significant than can be accommodated by simply moving within bands.Referring to the evidence of Detective Superintendent Williams about the experienceof Kawerau, where gang members were giving solo mothers free methamphetamineto addict and then recruit them as dealers,75 Mr Rapley QC and Ms Watt forthe New Zealand Law Society, New Zealand Bar Association and Auckland DistrictLaw Society submitted that it was not difficult to envisage a situation where the gangmember was charged with supplying the three grams necessary to addict the mother,and the mother was then charged with dealing a much greater quantity. As theysubmitted, in such a case the relationship between culpability and quantity in respectof those two offenders would be inverted.[111] Mr Stevenson and Ms Hall for the Criminal Bar Association andPublic Defence Service made a similar point. A courier or "mule" may have a verysubstantial quantity of methamphetamine on their person for which they might be paida small sum of money or a small amount of methamphetamine to feed addiction.In contrast, an offender might be more culpable than the weight suggested.Little quantity might be found on that person, but yet large sums of unexpected cashand assets might suggest that the person had a greater role in a large commercialoperation.[112] Mr Rapley and Ms Watt argued that the starting point should be set byreference to five culpability factors: role, quantity, commerciality, links to organisedcrime and exploitation of others.[113] Mr Stevenson and Ms Hall proposed a less articulated approach, based onthe United Kingdom Sentencing Council Definitive Guideline for Drug Offences of2012.76 That has a tabulated approach based on two factors: quantity and role.[114] The Sentencing Council divides quantity into four bands (or "categories"):up to five grams, up to 150 grams, up to one kilogram, and up to five kilograms.The sentence range for a leading role up to five kilograms of Class A drugs75 See above at [79].76 Sentencing Council (UK) Drug Offences: Definitive Guideline (2012).(including methamphetamine) is 12 to 16 years, against a maximum sentence oflife imprisonment. As we apprehend the guideline, offending above five kilograms iseffectively treated as a separate category, potentially running to the maximumsentence.[115] Role is divided into three categories. First (and attracting a more substantialscale) there is the "leading role". This applies where the offender is directing ororganising buying and selling on a commercial scale and/or is closely connected toproduct source and/or has an expectation of substantial financial gain. The second isthe "significant role". That is where the offender has an operational or managementfunction within a chain, has subordinates (who may have been recruited or intimidatedby the offender) and/or is motivated by financial or other advantage. The third tier isthe "lesser role". Here the offender will probably have performed a limited functionunder direction and/or may have been engaged by duress, naivety or othervulnerability.[116] The United Kingdom sentencing guideline makes some limited distinctionbetween supply, importation and manufacture, with importation generally attracting aslightly higher starting point than the other two categories. That is different to theapproach taken by this Court in Fatu, where manufacture attracted the highest level ofstarting point, in part because of perceived additional health dangers.77[117] The significance of role under the United Kingdom sentencing guideline isdemonstrated by the fact that the starting point for sentencing in each category for alesser role is approximately half the starting point for offending in a leading role, andin the case of category four (five grams or less) it is less than a third of the startingpoint for offending in a leading role.A new sentencing approach for methamphetamine offending[118] We may summarise our proposed approach at the outset. After extensiveconsideration and debate upon the matter, we propose to retain the Fatu quantitybands, but with some significant modifications. In particular, we confirm that the role77 R v Fatu, above n 1, at [23].played by the offender is an important consideration in fixing culpability and thusthe stage one sentence starting point. Due regard to role enables sentencing judges toproperly assess the seriousness of the conduct and the criminality involved,and thereby the culpability inherent in the offending, in the holistic manner requiredby Taueki and Hessell.78 It means that a more limited measure of engagement incriminal dealing deserves a less severe sentence than a significant or leading role.Role may result in an offender moving not only within a band — as currently happensor is supposed to happen under Fatu — but also between bands. As already mentioned,it was suggested role could be formalised by adopting the United Kingdom SentencingCouncil two grid matrix (using quantity and role category) discussed at [114]–[115]above. However, after significant debate, we decline to take that course because weconsider it is likely to encourage a "tick box" approach to sentencing, replacing oneform of undue rigidity with another.[119] We make eight points.[120] First, we restate the Supreme Court's fundamental observation that sentencingmust involve "a full evaluation of the circumstances to achieve justice in the individualcase".79 That injunction calls for flexibility and discretion in setting sentences.A guideline judgment is not supposed to alter that fundamental requirement.[121] Secondly, we consider the Fatu bands require adjustment. Band four, which isrequired to cover quantities ranging between 500 grams and (in practice) more than500 kilograms, is simply too broad. It requires subdivision. The first adjustment wetherefore make is to subdivide it and to create a new band five, for quantities in excessof two kilograms. We select that number having regard to the data point distributionshown in the graphs discussed at [95]–[100] above.[122] Thirdly, we are persuaded that we need no longer subdivide the Fatu bandsfunctionally, between supply, importation and manufacturing. The relevant offendingfalls within a group of offences punished identically by s 6(2) of the Misuse of DrugsAct, whether involving production, importation or possession for supply, because the78 R v Taueki, above n 23, at [28] and [42]; and Hessell v R, above n 38, at [38].79 Hessell v R, above n 38, at [38].harm caused is identical regardless of method. The safety concerns relating tomanufacture, seen in Fatu as justifying a higher starting point, are less distinct almost15 years later when the major focus of crime prevention in this area is on importationby organised crime groups. Knowing participation in importation or manufactureshould simply be treated as indicative of a more significant role and degree ofculpability, attracting a higher sentence starting point across the range indicated.[123] Fourthly, we consider judges must be more willing to set a starting point belowthe range specified in Fatu for a band where culpability (other than in terms ofquantity) is low. Primarily that will be the case where an offender plays a lesser rolein the offending. We have considered whether it would be sufficient to simply statethat expectation, and leave the starting points as they are in Fatu (excepting of coursethe new band five). We have decided that that would not send a sufficiently clearmessage. We are particularly concerned at the need to consider more flexiblesentencing solutions in band one, where community-based sentences need to be astarting point open to the court, not merely an end point.80 Accordingly, we shallreduce slightly the sentence starting points in bands one to four. Access to the lowersentence starting points may be expected only by those whose role is found to be lesserin degree, and where quantities are at the lower end of the relevant range. We recordthat although the new entry points are intended to encompass most cases of lowculpability in setting a starting point, we do not exclude the possibility of a caseinvolving minimal participation which might fall below even those entry points.The data in the schedule indicates two such cases historically. There will be othercases in the future, where this is necessary to do justice in a particular case.The Phillips appeal before us raises this very issue.[124] Fifthly, we have made certain other minor adjustments to the starting pointranges for internal consistency and fairness. These adjustments are self-evident in thetable below. They include a revised upper level for bands one to four, reflectingchange in entry points, data captured in the schedule reflecting actual (albeitunreformed) sentencing practice over the last fifteen years and the greater emphasis80 As to that end point, we observe that a more liberal application of the proviso in s 6(4) ofthe Misuse of Drugs Act is appropriate where an offender plays a lesser role in offending, andparticularly where health issues contribute to the offending.of this judgment on reserving sterner sentencing for commercial dealing inmethamphetamine.[125] The new bands are as follows:Former: Fatu New: ZhangBand one: < 5 grams 2 – 4.5 years Community to 4 yearsBand two: < 250 grams 3 – 11 years 2 – 9 yearsBand three: < 500 grams 8 – 15 years 6 – 12 yearsBand four: < 2 kilograms 10 years to life 8 – 16 yearsBand five: > 2 kilograms 10 years to life 10 years to life[126] Sixthly, we have not adopted the double axis approach of the United KingdomSentencing Council. Nevertheless, in assessing role, sentencing judges may find ithelpful to have regard to the Council's descriptions of roles and relevant indicia to betaken into account. We set these out below, modified slightly to reflect New Zealandcircumstances. We observe that indicia 2, 3 and 4 for "lesser role" categorisation aredescriptive of conduct. Any discount for associated mitigating personal considerationsis a matter for the second sentencing stage.RoleLesser Significant Leading1. Performs a limitedfunction under direction;2. engaged by pressure,coercion, intimidation;3. involvement throughnaivety or exploitation;4. motivated solely orprimarily by ownaddiction;5. little or no actual orexpected financial gain;6. paid in drugs to feedown addiction or cashsignificantlydisproportionate toquantity of drugs orrisks involved;7. no influence on thoseabove in a chain;8. little, if any, awarenessor understanding of thescale of operation;and/or9. if own operation, solelyor primarily for own orjoint use onnon-commercial basis.1. Operational ormanagement function inown operation or withina chain;2. involves and/or directsothers in the operationwhether by pressure,influence, intimidationor reward;3. motivated solely orprimarily by financial orother advantage, whetheror not operating alone;4. actual or expectedcommercial profit;and/or5. some awareness andunderstanding of scale ofoperation.1. Directing or organisingbuying and selling on acommercial scale;2. substantial links to, andinfluence on, others in achain;3. close links to originalsource;4. expectation ofsubstantial financial gain;5. uses business as cover;and/or6. abuses a position of trustor responsibility.[127] We are conscious that role is a matter more likely to be known by the offenderthan the Crown. The prosecution may have difficulty establishing the exact nature ofthe offender's role. By virtue of s 24(2) of the Sentencing Act, the Crown has theburden of proving aggravating facts in dispute, and disproving mitigating facts indispute, that relate to the offender's part in the offence. But this issue exists alreadyinasmuch as this Court has already said in Fatu that where an offender fits within anyparticular band will also depend on the role played by the offender. In practice thefacts necessary to establish guilt often justify inferences about role, knowledge andgain. Where these inferences are sufficient to prove an aggravating fact, an evidentialburden will move to the offender to displace the inference. The Crown already facesthe need to disprove mitigating role-related factual assertions advanced by offendersin Class A drug sentencing. We do not see this decision as altering that, simply as aconsequence of reinforcing and enhancing the consideration of role in assessingculpability.[128] Seventhly, we do not consider it necessary to make specific reference here tothe other culpability factors suggested by counsel for the New Zealand Law Societyand the New Zealand Bar Association. We think commerciality, links to organisedcrime and the exploitation of others are sufficiently provided for and reflected in thethree "role" categories identified above.[129] Finally, we noted earlier in this judgment that purity levels ofmethamphetamine seized in New Zealand tend to be high, at an average of 73 per cent.That reflects, in part, the relatively low cost of supply from source. The approachtaken in Fatu was that the quantity computations apply to purity levels in the order of60 per cent or more.81 Reduced purity corresponds to reduced harm, and maycommand a reduction in the quantity calculated — if need be after a disputed factshearing. As this Court observed in Fatu, in cases where the purity levels are less than60 per cent, the sentencing response can be "less stern".82 We received no submissionssuggesting change to that approach in Fatu, and we see no need to alter it here.Accordingly, the same approach to the level of purity will apply now as before.Stage two analysis: personal mitigating and aggravating circumstances not to berelegated in serious drug offending sentencing[130] In a number of decisions of this Court it has been suggested thatmethamphetamine is so grave a form of offending that less weight should be given topersonal circumstances at the second stage of the sentencing process.83 In R v Jardenthe Supreme Court said commenting in the context of a sentencing on one count ofconspiracy to supply methamphetamine that:8481 R v Fatu, above n 1, at [30]. That percentage corresponded to "P" sold at street level.82 At [30].83 See, for example, Chen v R, above n 36, at [174].84 R v Jarden, above n 31, at [12].[a]s the Courts have repeatedly said, and we emphasise again, in sentencingthose convicted of dealing commercially in controlled drugs the personalcircumstances of the offender must be subordinated to the importance ofdeterrence. But this does not mean that personal circumstances can never berelevant.[131] In that case the Supreme Court also observed that the personal circumstancesof an offender may be relevant either because they contribute in some way tothe offending, or on purely compassionate grounds.85 In that case Mr Jarden hadsuffered anxiety and depression, but that was not shown to be causally connected withhis offending. However, the Supreme Court reduced his sentence by six months toreflect the "very tragic situation in which Mr Jarden found himself shortly before histrial" (namely the suicide of his partner).86[132] We make three observations.[133] First, given the outcome in Jarden, we do not apprehend the Supreme Court tohave used "subordinated" in any sense implying exclusion of consideration of personalcircumstances. Rather, such circumstances are to be weighed in the balance with theneeds of deterrence, denunciation, accountability and public protection.87These considerations, in conjunction with the maximum sentence scale enacted,require a stern response to offending of this kind. Personal circumstances may wellhave a more limited temporal effect in the context of serious commercial drug dealingof the kind the passage in Jarden was contemplating. That is because the starting pointwill be very much higher in the first place for offending of that kind.[134] Secondly, we think the segregated analysis in modern New Zealand sentencingpractice under the Taueki and Hessell decisions adequately balances the sentencingpurposes stated in s 7 of the Sentencing Act. At the first stage culpability forthe offending, assessed objectively, is weighed, setting a starting point. Starting pointsalmost inevitably will be higher when serious commercial Class A dealing is engaged.Consistency is important at this stage, so one case can be compared with another infuture sentencing. At the second stage, a substantial measure of discretion is vested in85 At [14].86 At [15].87 Sentencing Act, s 7.the sentencing judge to mitigate the starting point for personal circumstances thatmean applying the starting point would be inconsistent with s 7(h) — the rehabilitationand reintegration of offenders — and the considerations expressed in the latter part ofs 8.[135] Thirdly, we think considerable caution must be exercised in the expression ofbroad principles which may diminish the inherently discretionary weighting ofaggravating and mitigating factors in stage two of the sentencing exercise. Indeed, itis a qualified discretion in any event. Section 9(2) of the Sentencing Act requiresthe court to take into account certain mitigating factors to the extent they are applicableto the particular case. Section 9(3) makes clear the list in s 9(2) is non-exclusive.Section 8(g) requires the court to impose the least restrictive outcome appropriate inthe circumstances. Importantly, s 8(h) requires the court to take into account anyparticular circumstances of the offender that mean the sentence would bedisproportionately severe. None of these provisions are expressed by Parliament asbeing inapplicable, or less applicable, in certain classes of crime.88[136] It follows that we consider that personal mitigating circumstances relating tothe offender, at stage two of the sentencing exercise, are applicable to all instances ofClass A drug offending, as in any other offending.[137] There are certain mitigating considerations particularly germane tomethamphetamine offending:(a) addiction;(b) mental health;(c) duress or undue influence; and(d) social, cultural and economic deprivation.88 To state the obvious, Class A drug offending does not attract a mandatory life sentence.[138] These considerations are relevant in three ways. The first is because each canimpair the rational choice made to offend, and thereby diminish moral culpability.The second is that diminished opportunity to make a rational choice also diminishesthe deterrent aspect of sentencing, both general and specific, as we have discussedalready. The third is that some of these impairments alter the effect of a term ofimprisonment on the individual offender and add to its severity. This thirdconsideration is one of proportionality.89(a) Addiction[139] The Crown conceded that it would be appropriate to adjust Fatu to cater moreeffectively for offenders whose actions are driven by addiction, and whose offendingsits at the lower end of the scale in terms of seriousness.[140] First, Mr Lillico said that the rationale for factoring in an offender's addictionmay be considered similar to that for mental health allowances. The Crown submittedthat addiction should only be relevant where it is causative of the offending.It suggested based on decisions of this Court that addiction should not be treated ashaving mitigating effect in cases where the offender operated above street level orself-sufficient dealing.90[141] Secondly, the Crown submitted that any such discount be based on persuasiveevidence, as opposed to mere self-reporting. Mr Lillico relied on the decision ofthe South Australian Court of Criminal Appeal in R v Young:91It is common for offenders to claim that they are, or were, heavily addictedand that drugs found in their possession were primarily for their own use. It isnecessary for Judges to carefully evaluate those claims. The indicia ofcommerciality are well known. When claims of addiction and own use arepressed as factors in mitigation in the face of evidence of substantialcommerciality they may need to be supported by evidence on oath or othercorroborative material.[142] We make seven points.89 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [70]; and Shailer v R [2017] NZCA38, [2017] 2 NZLR 629 at [45].90 He v R [2017] NZCA 77 at [19].91 R v Young [2016] SASCFC 102, (2016) 126 SASR 41 at [69].[143] First, we need to address the implication of s 9(3) of the Sentencing Act.This provides that voluntary consumption of alcohol or drugs, other than for abona fide medical purpose, cannot be taken into account by way of mitigation.We need as a result to refer to the 2011 decision of this Court R v Wihongi.92Ms Wihongi, a battered woman with significant mental health deficits and a history ofalcohol abuse, stabbed her partner to death following an argument. The Crownappealed an eight year determinate sentence for murder. The sentencing Judgedisregarded her intoxication at the time of the offending, but did take into account herunderlying alcoholism as one of a number of material impairments affectingculpability.93 This Court observed:[54] [It] is clear that the intention of the legislature is that, where thelevel of intellectual impairment at the time of the offending is affected byalcohol, the Court cannot take that into account. In our view this preventsthe Court from taking into account alcohol consumption even where theconsumption of the alcohol reflects an underlying alcohol abuse impairmentor a compulsive consumption of alcohol. We therefore accept [counsel's]submission that the Judge erred in this respect.[55] However, it has to be recognised in the present case that two differentfactors were at play: the underlying mental impairment of Ms Wihongi, andher consumption of alcohol, which is linked to that mental impairment.The fact that consumption of alcohol cannot be taken into account does notdiminish the significance of Ms Wihongi's diminished intellectual capacityunder s 9(2)(e).[144] This aspect of Wihongi does not appear to have been considered since bythis Court. However we do not see that decision as authority that a pre-existing stateof addiction contributing to the index offending may not be considered as a mitigatingconsideration. Significantly, the Crown did not advance such an argument. Rather, itsposition was that subject to two qualifications addiction might be considered in justthat way. We will return to the Crown's qualifications shortly.[145] Secondly, the evidence of Professor Nutt, Dr James Foulds, andDetective Sergeant Varnam demonstrates that a number of relevant mitigatingconsiderations do arise in relation to addiction. The first is that an offender's otherwisestrong pro-social tendencies may be overwhelmed by dependence and addiction, even92 R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775.93 R v Wihongi HC Napier CRI-2009-041-2096, 30 August 2010 at [44].if they have ceased using methamphetamine. Secondly, offenders may be unwillingto seek treatment because of both social stigma and threat of punishment.Thirdly, there is some evidence that offenders use methamphetamine as a copingmechanism for childhood trauma and in response to developmental difficulties.They may also be self-medicating for mental health issues such as ADHD, anxiety ordepression. And fourthly, the effect of methamphetamine addiction results in theprioritisation of the narcotic over needs such as food, shelter and personalrelationships. As a consequence addicts may lose family and whānau support to theinexorable progress of the addiction. As Dr Foulds observed:Addictive substances activate brain systems which evolved to help lay downhabits important for survival. In other words, the addictive behaviour comesto be pursued as if it were important for survival. In an addicted individual,behaviours necessary to obtain and use the preferred substance are thereforeprioritised over other activities in the person's life, even when this is harmfulor is inconsistent with a person's morals or goals such as avoiding legalsanctions.[146] Thirdly, we have noted already that addiction calls in question the effectivenessof deterrence, in the same way that a mental health issue may do. That point isconceded by the Crown. We accept the submissions by Mr Butler and Ms Paenga onbehalf of the Human Rights Commission that addiction engages other considerationsunder the Sentencing Act. In particular, it engages the purpose of assisting anoffender's rehabilitation and reintegration. In R v Rawiri this Court confirmed thatexceptional circumstances were not required before a consideration of acommunity-based sentence, in the context of offending by an addict involvingpossession of precursor substances and material and equipment with the intention thatthey be used in manufacturing methamphetamine at a clandestine laboratory.94[147] Fourthly, we turn to the Crown's first reservation, which is that addictionshould only be relevant where it is causative of the offending, and that addiction shouldnot be treated as having mitigating effect in cases where the offender operated abovestreet level or self-sufficient dealing. We accept that non-causative addiction will beof little mitigatory relevance, as is the case with a non-contributory mental healthcondition, unless in the sense referred to below. We also accept that commercial94 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [12].dealing is likely to be inconsistent with the impairment of the ability to exerciserational choice, which is what diminishes culpability and justifies discountingthe sentence. But we would not exclude the possibility of a case in which thatimpairment co-exists with more substantial offending. Furthermore, as we notedearlier, addiction is relevant in a second way unrelated to the choice made to offend:that is, in potentially rendering a term of imprisonment more severe (but notnecessarily, if addiction treatment programmes are available). Each aspect is a matterfor the sentencing judge to have regard to.[148] Fifthly, we are more sympathetic to the Crown's second reservation. That wasthat any such discount should be based on persuasive evidence, as opposed to mereself-reporting. We agree. Inasmuch as a stage two discount for mitigatingcircumstances is engaged, the onus of proof (to the civil standard) lies on the offenderto establish the extent and effect of addiction.95[149] Sixthly, we consider addiction may logically give rise to a discount of up to30 per cent of the sentence depending on the extent to which it mitigates moralculpability for the offending. There is we acknowledge a degree of arbitrariness inthat figure, and it can be indicative only. It is not to be regarded as an absolute upperlimit. In some cases, a sentencing judge may well have grounds to conclude that thereis no material difference between the mitigating impact of the addiction presented anda serious mental health disorder. In such a case a greater discount could not becondemned as unduly lenient, although clear reasons ought to be given for that coursebeing taken.[150] Finally, addiction in particular calls for consideration of a rehabilitativeresponse as part of sentencing. We encourage sentencing judges to explorerehabilitative options in sentencing addicted offenders. We return to this topicshortly.9695 Sentencing Act, s 24(2)(d). We see addiction as a stage two mitigating consideration falling withinthe offender's burden under that provision.96 See below at [175].(b) Mental health[151] Mental impairment, even beyond the limited provision for diminishedintellectual capacity or understanding under s 9(2)(e) of the Sentencing Act, is amitigating consideration. Mental impairment short of insanity affects the sentencinglevel in the three respects identified at [138].[152] The evidence before us suggested that methamphetamine is both attractive tousers with mental health issues and can itself be causative of mental health issues.Accordingly where there is an evidential basis to suggest that mental health issueshave contributed to the offending, or otherwise should alter the assessment of theappropriate sentence, a discount is available. We need note only the reality thatmental health issues and addiction may operate in combination, and the need to ensurethat there is no improper doubling-up of discounts for personal circumstances.[153] The degree of discount is said to depend on the severity of the mental healthcondition issue and the strength of the causal link between that condition andthe offending.97 In E (CA689/10) v R, this Court reviewed a range of discounts treatedas appropriate when a mental condition had contributed to the offending.98 The rangediscerned was from 12 to 30 per cent. The decision also noted R v Gordon wherecombined discounts taking into account mental illness and other factors reached50 per cent of the starting point.99 This is not the case in which to review discountlevels for contributing mental health conditions. That is a question for another day.It will suffice for present purposes to record their potential availability in casesinvolving methamphetamine offending.(c) Duress or undue influence[154] Sentencing discounts may also apply where an offender has acted under duress,short of a full defence, or the undue influence of a person upon whom the offender isdependent (which we term undue influence) for the simple reason that personal97 Edri v R [2013] NZCA 264 at [17].98 E (CA689/10) v R, above n 89, at [71]–[83].99 At [79], citing R v Gordon CA276/04, 16 December 2004.responsibility is altered where volition is overborne or diminished.100 This prospectappears most likely to be raised in gang-related offending, or intra-familial offending,and it is unnecessary to say more about this at this stage.(d) Social, cultural and economic deprivation[155] Māori alcohol and other drug use-related morbidity is about double that ofnon-Māori. As we observed earlier, Māori were 3.4 times more likely to have usedamphetamines in the past year than non-Māori. There is evidence, also, that Māori aremore than four times more likely to be convicted of illicit drug dealing.101The proportion of Māori offenders proceeded against in court for possession, use andutensils for methamphetamine has increased from 33 per cent in 2010 to 47 per centin 2018. The proportion of European offenders proceeded against for the same mattershas dropped from 56 per cent to 42 per cent in the same timeframe.[156] The example of the Kawerau community discussed earlier in this judgment, acommunity with a Māori population of almost 62 per cent, is indicative of the scale ofthe problem on a communal basis. Evidence demonstrated the deliberate addiction ofsolo mothers and other persons in order to recruit them as salespeople, with users beingforced to sell methamphetamine to clear debts owed to dealers.[157] We received evidence and submissions from Te Hunga Rōia Māori o Aotearoa,the Māori Law Society. We express our appreciation for the submissions delivered byMr Merrick and Ms Haronga, and the evidence of Associate Professor Khylee Quince,Drs Vicki Macfarlane and Rawiri Jansen, and Mr Rawiri Pene, Te Pou Oranga atTe Whare Whakapiki Wairua, the Alcohol and Other Drug Treatment Court inAuckland and Waitakere. Their evidence and submissions focused on the extent ofmethamphetamine abuse by Māori, the consequence for whānau, hapū and widercommunities, and therapeutic criminal justice initiatives addressing abuse, addictionand related offending as primarily a health issue calling for a healing (rather thanpunitive) response.100 R v McCarthy (1996) 13 CRNZ 578 (CA); and R v Cullen HC Tauranga CRI-2008-070-2188,23 April 2008.101 Alan Johnson Are You Well? Are We Safe? (The Salvation Army Social Policy & ParliamentaryUnit, February 2019) at 81.[158] We make five points.[159] First, ingrained, systemic poverty resulting from loss of land, language,culture, rangatiratanga, mana and dignity are matters that may be regarded in a propercase to have impaired choice and diminished moral culpability. Where theseconstraints are shown to contribute causatively to offending (whether associated withaddiction or not), they will require consideration in sentencing.102[160] Secondly, distinct rehabilitative and reintegration considerations applicable toMāori that make use of the power in s 25 of the Sentencing Act to adjourn sentencingto enable rehabilitative programmes to be undertaken are particularly relevant.We will revert to this subject shortly.103[161] Thirdly, these are matters where the right to address the court on personal,family, whānau, community and cultural background and support under s 27 ofthe Sentencing Act is clearly relevant.[162] Fourthly, social, cultural or economic deprivation that has a demonstrativenexus with the offending may be presented in mitigation regardless of the specificethnicity of the offender. Likewise, the tools available in ss 25 and 27 are there foruse by any relevant offender.[163] Finally, we touch upon offenders from foreign jurisdictions. We acceptMr Butler and Ms Paenga's submission that the isolation of, and denial of familysupport to, foreign nationals imprisoned for drug offending may be treated as amitigating factor where it makes the sentence harder than usual to bear, and at thediscretion of the sentencing judge. It has been treated as such in the High Court, onoccasion.104102 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50]; Fane v R [2015] NZCA561 at [46]; and Arona v R [2018] NZCA 427 at [59].103 See below at [175].104 R v Yung [2017] NZHC 895 at [6]; and R v Yuen [2016] NZHC 571 at [15].Minimum periods of imprisonment in serious drug offending sentencing[164] As mentioned, the frequent imposition of minimum periods of imprisonmentin serious drug offending was criticised by several counsel in these appeals.[165] The power to impose a minimum period of imprisonment, or non-parole periodas it is commonly called, is governed by s 86 of the Sentencing Act.[166] Section 86 provides:86 Imposition of minimum period of imprisonment in relation todeterminate sentence of imprisonment(1) If a court sentences an offender to a determinate sentence ofimprisonment of more than 2 years for a particular offence, it may, atthe same time as it sentences the offender, order that the offender servea minimum period of imprisonment in relation to that particularsentence.(2) The court may impose a minimum period of imprisonment that is longerthan the period otherwise applicable under section 84(1) of the ParoleAct 2002 if it is satisfied that that period is insufficient for all or any ofthe following purposes:(a) holding the offender accountable for the harm done to the victimand 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 sameor a similar offence:(d) protecting the community from the offender.(3) [Repealed](4) A minimum period of imprisonment imposed under this section mustnot exceed the lesser of—(a) two-thirds of the full term of the sentence; or(b) 10 years.(5) For the purposes of Part 6 of the Criminal Procedure Act 2011, an orderunder this section is a sentence.[167] The effect of the section is that a sentencing judge may impose a minimumperiod of imprisonment where the judge considers that the period after whichthe offender would otherwise be eligible for parole is insufficient for certain specifiedpurposes. The specified purposes include deterrence, denunciation and public safety.[168] Potential deportation of an offender is not a consideration in sentence-setting.It is the function of the courts to impose sentences appropriate to the particularoffending. In performing that task, the distinct administrative processes for removalunder the Immigration Act 2009, which may or may not apply to one offender oranother, have no bearing.105 Likewise, this Court has also held that the prospect ofdeportation is not a proper ground for refusing to impose a minimum period ofimprisonment which would otherwise have been justified.106[169] As this Court has emphasised in other decisions, minimum periods ofimprisonment must not be imposed as a matter of routine or in a mechanistic way. It isnot sufficient for a judge simply to recite s 86 without more. A reasoned analysis isrequired, both as regards the imposition of a minimum period of imprisonment and itslength. In a number of recent appeals, this Court having undertaken that analysis hasconcluded that either the sentencing judge was wrong to impose a minimum period ofimprisonment or that its length was excessive and not justified.[170] In the context of drug dealing offences, there are two further important pointsto be made.[171] The first is that for the reasons already discussed, it is deterrence, denunciationand accountability that are likely to be at the forefront of decisions in drug casesinvolving the imposition of a minimum period of imprisonment. That in turn meansthat as a general rule, lengthy minimum periods of imprisonment are properly reservedfor cases involving significant commercial dealing.[172] The second is that if a practice has developed that an end sentence ofnine years' imprisonment automatically triggers a minimum period of imprisonment,then such a practice must cease. It is contrary to s 86 and is a wrongful exercise ofdiscretion.105 R v Zhang CA56/05, 24 May 2005 at [11]–[16]; R v Sabuncuoglu [2008] NZCA 448 at [34]; R vOndra [2009] NZCA 489 at [7]–[12]; and Xie v R [2019] NZCA 218 at [25].106 Bi v R [2014] NZCA 10 at [6]; and Olua v R [2014] NZCA 105 at [67].[173] It is correct that in R v Anslow this Court, after surveying 71 cases, noted thatminimum periods of imprisonment were commonly imposed for drug dealing offenceswhere the sentence handed down was nine years' imprisonment or more.107However, the Court was not thereby purporting to create a presumption or thresholdbut simply reflecting the reality that offending which is serious enough to warrant theimposition of a minimum period of imprisonment will generally attract a prisonsentence of at least nine years.[174] There are no presumptions, no rules of thumb. As it was put by the Crown,the s 86 test still needs to be applied in individual cases and must not be fettered.The use of a wider range of legislative tools to treat drug offenders in the courseof sentencing and detention[175] As already mentioned, submitters advocating for a greater focus onrehabilitation expressed concern about what they saw as the under-utilisation of s 25of the Sentencing Act. It will be recalled that s 25(1)(d) and (e) empowers a judge toadjourn a sentencing to enable an offender to undertake a rehabilitation programmeand for the offender's response to the programme to be taken into account whensentencing subsequently takes place.[176] The enactment of such a power was the result of a recommendation made bythe Justice and Electoral Committee and was directed at concerns about the increasingprison population.108 The clear intent was to encourage participation in rehabilitationprogrammes which if successfully completed could upon resumption of the sentencingprocess mean a custodial sentence was likely to be avoided.[177] The provision would appear to be tailored for offenders whose offending hasbeen caused by drug addiction. However, it appears from our own review of the caselaw and the information given to us by counsel that s 25 is used relatively infrequently.As a result, this Court has had limited opportunity to comment on s 25. However, ithas itself adjourned an appeal for two months to enable an appellant to attend a107 R v Anslow CA182/05, 18 November 2005 at [27].108 Sentencing and Parole Reform Bill 2001 (148–1) (explanatory note) at 1; and Sentencing andParole Reform Bill 2001 (148–2) (select committee report) at 23 and 28.residential treatment programme and, on receiving an updated report indicating apositive response, quashed a custodial sentence and replaced it with supervisioncontaining a condition that the appellant continue the programme.109 This Court hasalso in previous decisions such as R v Barry and R v Ward endorsed the benefit ofrehabilitative sentences generally.110[178] It appears from the enquiries made by Mr Lillico that Crown solicitors have noformal policy regarding when prosecutors should oppose or consent to adjournmentssought under s 25.[179] This case provides a further opportunity for this Court to encourage counseland sentencing judges to make greater use of s 25 in appropriate cases where possible.[180] As to what is an appropriate case, the starting point must be that adjournmentsunder s 25(1)(d) are only appropriate where independent evidence suggeststhe offending was caused by the factor(s) which the proposed programme or course ofaction is designed to target. In this context, self-reporting as to the causes ofthe offending will generally not be sufficient.[181] If counsel wish to invoke s 25, they should present the court with a consideredplan supported by written confirmation that the offender has already enrolled in theprogramme or has a start date. In an addiction case, that will mean providing the judgewith information from a recognised drug rehabilitation centre regarding the availableprogrammes as well as an objective assessment of the offender's willingness toparticipate and a prognosis of whether the treatment is likely to be successful.[182] The offender's personal circumstances such as age, criminal history and familysupport are also relevant. In this context, it may well be that s 27 of the Sentencing Actcould also be engaged with information being provided about the support availablefrom whānau and community to assist the offender in completing the proposed plan.If an offender has previously participated in a treatment programme but failed or beenexcluded from it that may tell against granting an adjournment.109 R v Barry CA228/93, 17 June 1993; and R v Barry CA228/93, 17 August 1993.110 R v Barry CA228/93, 17 June 1993 at 5; and R v Ward CA182/89, 29 September 1989 at 6.[183] Other factors which may be taken into account are the offender's bail historyand compliance with court orders as well as any risk factors and issues of victim safety.As some of the Crown solicitors surveyed by Mr Lillico have pointed out, bail of someform is usually required when an adjournment under s 25 is granted and therefore theusual bail considerations will apply.[184] According to Mr Lillico's survey, some but not all Crown solicitors considerthe likely end sentence to be a relevant factor in terms of whether they would opposea s 25 adjournment. Although s 25 is primarily aimed at cases where successfultreatment could mean the difference between a custodial or community-basedsentence, it is not expressed to be limited to such cases. Accordingly, it would bewrong for judges to superimpose such a limitation on the wording of the section andso fetter their discretion. In our view, even if a custodial sentence is inevitable becauseof the seriousness of the offending, that of itself should not automatically result inthe judge declining an adjournment. It may well be that successful completion of aprogramme warrants a reduction in the length of the prison sentence that mightotherwise have been imposed.[185] Finally, we note the point that even if an offender does not complete theprogramme, valuable progress may still have been made and we agree with counselthat this should be carefully considered and acknowledged or rewarded as appropriate.[186] Section 25 is a valuable tool in the sentencing judge's toolkit and we wouldendorse the comments of those advocating that greater use be made of it where arehabilitation programme is available and there is reason to believe a use of the powerwould serve a good purpose.Whether this guideline judgment applies retrospectively?[187] This judgment is to be issued on 21 October 2019. It applies to all sentencingthat takes place after that date regardless of when the offending took place. The moredifficult issue is whether it should also apply to those who have already been sentencedand if so in what circumstances.[188] The approach that has consistently been taken by this Court in previousguideline judgments is that the judgment only applies to sentences that have alreadybeen imposed, if and only if two conditions are satisfied: (a) that an appeal againstthe sentence has been filed before the date the judgment is delivered; and(b) the application of the judgment would result in a more favourable outcome tothe appellant.111[189] We have considered whether this approach is consistent with s 25(g) ofthe New Zealand Bill of Rights Act and s 6 of the Sentencing Act. Section 6 statesthat an offender has the right, if convicted of an offence in respect of which the penaltyhas been varied between the commission of the offence and sentencing, to the benefitof the lesser penalty. Section 25(g) is to similar effect.[190] However, we have concluded that neither section is engaged in the currentcontext. That is because a change in sentencing practice does not alter the penaltyprovided by the legislation creating the offence but is an exercise of the sentencingdiscretion in an individual case. To put it another way, a change in guideline does notamount to a change of penalty for the purposes of those two provisions.[191] We are satisfied that the approach adopted in the past should also be appliedto this judgment. It is a principled approach that preserves the integrity of the criminaljustice system.D. INDIVIDUAL APPEALS[192] We now consider the individual appeals before the Court. We approach themin order of starting point in the sentence appealed, starting with the lowest.Leanne Maree Crighton[193] Ms Crighton pleaded guilty to and was convicted on 11 charges of offering tosupply methamphetamine, three charges of supplying methamphetamine, one charge111 R v Vadati CA 256/05, 19 December 2005 at [8].of possessing methamphetamine and other minor offending.112 Judge Zohrabsentenced Ms Crighton to 22 months' imprisonment on these charges, with leave toapply for home detention.113[194] Ms Crighton appeals her sentence on the basis that the starting point wasmanifestly excessive. The sentence should have been community-based, the mostobvious sentence being intensive supervision with conditions that Ms Crighton attenda residential rehabilitation facility and undergo psychological counselling andtreatment. Special conditions such as electronic monitoring could be imposed tosatisfy the requirement of a punitive element; or alternatively community work couldhave been an appropriate sentence.Leave to bring second appeal[195] Ms Crighton's first appeal against sentence was dismissed by Cooke J inthe High Court at Nelson on 12 December 2018.114 She now seeks leave to bring asecond appeal against sentence. Given the general and public importance of guidancerelating to methamphetamine sentencing, and the lack of Crown opposition, we grantleave for Ms Crighton to bring a second appeal.115Background[196] Ms Crighton became involved in supplying methamphetamine in order to feedher addiction as well as that of her partner. As a result of Operation Tulip, a policeoperation to target the commercial supply and distribution of methamphetamine inNelson, Ms Crighton was identified via her cellphone number sourcingmethamphetamine from the principal targets of the operation. Production ofMs Crighton's phone allowed the police to identify 14 occasions where Ms Crightonsupplied or offered to supply methamphetamine to associates. The total amount ofmethamphetamine supplied or offered was 3.75 grams.112 The other charges were disorderly behaviour, possession of utensils, possessing a knife, breach ofcommunity work and driving while disqualified.113 R v Crighton [2018] NZDC 16378.114 Crighton v R [2018] NZHC 3282.115 Criminal Procedure Act 2011, s 253(3)(a).Sentence appealed[197] Judge Zohrab adopted a starting point of two years and 10 months'imprisonment on all charges, having regard to the Fatu bands as considered in asentence indication. A credit of approximately 12 per cent was allowed forMs Crighton's personal circumstances, taking the sentence to 30 months. A furtherdiscount of 25 per cent was allowed for the guilty plea, resulting in an end sentence of22 months' imprisonment. The Judge considered it appropriate to grant leave to applyfor home detention either to a residential treatment programme or to a moreappropriate address than the one Ms Crighton had provided.116Discussion[198] Applying Ms Crighton's offending to the new sentencing guidelines,the quantity supplied or offered to supply was under five grams, falling intoband one.117 The appropriate starting point range is therefore a community-basedsentence to four years' imprisonment. In setting a starting point, we are required tobalance the quantity involved (in the upper part of the band, but mitigated by the factthere was little expected gain) and the role undertaken by Ms Crighton. Ms Crightonshould be regarded as having a lesser role, as she had no influence on those above herin the chain of operations, appeared to have little, if any, awareness or understandingof the scale of the operation and (significantly) there was little or no actual or expectedfinancial gain. Ms Crighton offended to pay for her own drug use and to supply herpartner with methamphetamine, at least in part to prevent any violence.Although Mr Bamford submitted that a community-based sentence would be anappropriate starting point in these circumstances, we consider a starting point oftwo years' imprisonment appropriately reflects these considerations.116 R v Crighton, above n 113, at [3], [13] and [19].117 On the basis that the current approach to offers to supply is continued, wherein it is open tothe court to assume that Ms Crighton had the ability to make good on her offers: Dodd v R [2013]NZCA 138 at [14]. However, Mr Bamford submitted that this is problematic because in practice,often an offender will contact multiple people in the hope that one of them will buy the amount orhave not actually sourced the product when they make the offers. This argument is difficult toreconcile with s 6(1) and (2) of the Misuse of Drugs Act, which make no distinction betweensupplying/selling and offering to supply/sell controlled drugs.[199] Turning to factors relevant to Ms Crighton personally, information available atsentencing confirmed that Ms Crighton has a difficult personal history. Ms Crightonexperienced and witnessed abuse during her childhood. She moved in and out of fostercare during her teenage years. Ms Crighton then experienced several abusive andviolent relationships. The psychologist's report provided at sentencing described apattern of intimate relationships across her life as having "largely been characterisedby violence". Ms Crighton and her most recent partner, the father of two of herchildren, separated in 2016 or 2017 and a protection order was put in place for thebenefit of Ms Crighton and the children. However, at the time of the pre-sentencereport, the children had been removed from Ms Crighton's care and placed in the careof their father. Ms Crighton reported that she had been diagnosed with anxiety anddepression, although denied any current suicidal ideation. The psychologist's reportalso suggested that Ms Crighton demonstrated symptoms of Post-Traumatic StressDisorder (PTSD) as a result of the assaults she experienced as a teenager.Methamphetamine was used as a coping mechanism to deal with these issues.[200] To that end, Ms Crighton also adduced evidence establishing a causative linkbetween her use of methamphetamine and her offending, the offending having beenprimarily motivated by a desire to fuel her own addiction.[201] We consider that a discount of 30 per cent is warranted in light of these personalcircumstances, involving both mental health and addiction vulnerabilities. We seelittle purpose served by attempting to divide the discounts between these two factors,given their interconnection. A further discrete discount of 25 per cent for the guiltypleas also applies. This would reduce Ms Crighton's sentence to 12 months'imprisonment.[202] The question then becomes whether it would be appropriate to substitute thiswith a community-based sentence. While we consider that this is a situation where asentence of intensive supervision would likely have been appropriate givenMs Crighton's personal circumstances and rehabilitative prospects, we are faced withthe difficulty that Ms Crighton finished serving her sentence just one week after thehearing, in April 2019. Ultimately, we recognise and commend Ms Crighton'scommitment to seeking rehabilitative options. This was clearly a possibility envisagedby the Judge when granting leave to apply for home detention at a residential treatmentfacility. The imposition of a sentence of intensive supervision on appeal would ineffect re-punish Ms Crighton. She has served eleven months' imprisonment and beensubject to post-release conditions for a further five. She remains subject topost-release conditions today. Her appeal will be allowed, but we consider the precisedisposition of the appeal requires further submissions from counsel for Ms Crightonand the Crown. The Court will issue a minute separately in this appeal.Result[203] Ms Crighton's appeal will be allowed, but further submissions are sought onformal disposition of the appeal in light of [201] and [202] of the judgment.Jonelle Rachel Phillips[204] Ms Phillips pleaded guilty to two charges of supplying methamphetamine,one representative charge of supplying methamphetamine, and one charge ofpossessing methamphetamine for supply. She was also convicted of one charge ofpossession of a Class B controlled drug, one representative charge of supplyingcannabis and one charge of possessing cannabis for supply. She was sentenced byCollins J to four years and three months' imprisonment.118 Ms Phillips appeals hersentence on the basis that it was manifestly excessive.Leave to appeal out of time[205] Ms Phillips' notice of appeal was filed approximately three months out of time.The Crown does not oppose Ms Phillips' application for an extension of time and weare satisfied it is appropriate to grant in the circumstances. We grant the applicationaccordingly.Further evidence on appeal[206] Ms Phillips also sought to adduce a second affidavit for the purposes ofthe appeal. The affidavit details Ms Phillips' experience in prison. She says she has118 R v Phillips [2018] NZHC 2119.not been able to properly address her PTSD or build supportive networks in the prisonenvironment and is concerned at the impact her imprisonment is having on herchildren. While we have sympathy for Ms Phillips' plight, these matters do not bearon the correctness of her sentence at the time it was imposed. Rather they are mattersfor the Department of Corrections and the Parole Board. We therefore declinethe application to adduce further evidence on Ms Phillips' appeal.Background[207] Ms Phillips' offending was detected during the course of a police operationtargeting the commercial supply of methamphetamine in Wellington. Ms Phillips andMr Smith were identified as Auckland-based suppliers who would sellmethamphetamine to offenders in Wellington. Mr Smith, with whom Ms Phillips wasin a relationship, was in contact with an importer. On two occasions, Mr Smith andMs Phillips drove to Wellington where they supplied at least six kilograms ofmethamphetamine. The Judge observed that Ms Phillips was "clearly not the partytaking a lead" in the supplies and accepted that she accompanied Mr Smith out of asense of loyalty.[208] However, the Judge also considered Ms Phillips could properly be describedas a low-level supplier in her own right. Between 18 March 2017 and 11 April 2017Ms Phillips received numerous calls and messages from associates wanting to obtaincannabis or methamphetamine. Ms Phillips regularly met with customers and wouldsometimes travel long distances to do so. At least one customer arranged supplies onher behalf. This conduct formed the basis of the representative charges of supplyingmethamphetamine and cannabis. The quantity supplied by Ms Phillips in her ownright was unable to be determined. The three possession charges resulted fromdiscoveries in Ms Phillips' house, vehicle and on her person of cannabis (a total of18.8 grams), methamphetamine (an undetermined quantity, but less than 22 grams),16 NBOMe tabs (a Class B drug) and materials including digital scales.119119 At [10]–[12] and [17]. According to the summary of facts to which Ms Phillips pleaded guilty,the combined weight of the small plastic container with a screw on lid and the methamphetaminecontained within was 22 grams.Sentence appealed[209] The Judge adopted a starting point of five years' imprisonment for the twoleading supply charges. A one year uplift was imposed to reflect Ms Phillips' personaldrug dealing charges, resulting in global starting point of six years' imprisonment.Ms Phillips' previous convictions, which included 13 convictions in 2011 forconspiring to deal in methamphetamine, received an uplift of six months.120[210] The Judge then turned to consider Ms Phillips' personal circumstances.These included a diagnosis of PTSD in relation to a traumatic event in her past whichwas the catalyst for her methamphetamine use. Following completion of a residentialrehabilitation programme during her 2011 sentence, Ms Phillips avoidedmethamphetamine for five years. However, she relapsed after entering into arelationship with Mr Smith. Ms Phillips met the criteria for a methamphetaminedependency prior to her arrest. Ms Phillips explained her offending to thepre-sentence report writer by saying "I wasn't thinking, I was in love". At the time ofsentencing Ms Phillips was completing the Salvation Army Residential Alcohol andOther Drug programme and reported that she had not used methamphetamine for16 months. A psychologist's report prepared for sentencing considered a long term ofimprisonment might trigger Ms Phillips' PTSD. The Judge considered a nine monthdiscount was appropriate to reflect these circumstances.121[211] The Judge also gave Ms Phillips a three month discount for remorse and asix month discount for time spent on restrictive bail conditions. Finally, a 15 per centdiscount was given for Ms Phillips' guilty pleas entered a few weeks before trial.122[212] The Judge ultimately imposed a sentence of four years and three months'imprisonment on the two charges of supplying methamphetamine. Sentences rangingfrom one month's imprisonment to two years' imprisonment were imposed on theremaining charges. The sentences were imposed concurrently. It may be observedthat, by contrast, Mr Smith received a starting point of 17 years' imprisonment (an endsentence of thirteen years and six months' imprisonment) on two charges of supplying120 At [22], [23] and [25].121 At [26]–[30].122 At [31]–[33].methamphetamine, and the representative charge of supplying methamphetamine,involving a quantity of 15 kilograms in all.123Discussion[213] Ms Pecotic for Ms Phillips submitted that the end sentence imposed bythe Judge was manifestly excessive. Ms Phillips' sentence was said to bedisproportionate to her culpability, as a result of her being sentenced on the basis ofquantum, which dictated the starting point. As well as the starting point being toohigh, insufficient credit was given for Ms Phillips' personal mitigating circumstancesand her guilty plea. A community-based sentence would have been in the best interestsof both Ms Phillips and society.[214] We address the starting point adopted and the discounts granted forMs Phillips' personal circumstances and guilty pleas in turn.[215] Ms Pecotic criticised the starting point adopted by the Judge as being dictatedby quantum. She submitted that for offenders such as Ms Phillips, the appropriateapproach is for culpability to be determined first, with quantum and the extent ofcommerciality being aggravating factors. On this approach, a starting point oftwo years or less could have been adopted. In assessing Ms Phillips' culpability, itwas relevant that she did not own the drug and was merely acting as a drivingcompanion for Mr Smith. Ms Phillips was in a relationship with Mr Smith at the timeof the offending and was "very much under his influence". She was also in the gripsof a drug addiction. Moreover Ms Phillips was not involved in the offending forcommercial gain and obtained no commercial benefit. Her input in the offending wasminimal. The charges in respect of Ms Phillips' personal dealing involved low-leveltransactions and the offending was for the purpose of feeding her drug addiction.In these circumstances, a community-based sentence should have been imposed.[216] The Crown did not agree that quantity dictated Ms Phillips' starting point,noting that the quantity involved indicated a starting point firmly within band four of123 R v Smith [2018] NZHC 2118 at [21] and [35]. The end sentence included a six month uplift forfirearms charges.Fatu was appropriate. However, the Judge took Ms Phillips' particular role andcircumstances into account in reaching a starting point at the top of band one or thebottom of band two of Fatu. Had quantity been the determining factor, a starting pointremaining within band four would have been adopted.[217] We agree with the Crown that the Judge clearly took Ms Phillips' limited rolein the joint offending with Mr Smith into account. While noting that Ms Phillips'offending fell within band four of Fatu, the Judge found that Ms Phillips' culpabilitywas "significantly less than that of Mr Smith".124 As mentioned, the Judge acceptedthat Ms Phillips accompanied Mr Smith out of a sense of loyalty. The starting pointadopted by the Judge was generous in light of the Fatu paradigm, and was clearly notdictated by quantum as seen by the departure from the Fatu starting point range thatcorresponded to the quantity involved.[218] Under the new sentencing guidelines, the quantity of methamphetamineinvolved in the main supplies engages band five, being over two kilograms.That engages a starting point between 10 years and life imprisonment, which is thesame as band four under Fatu. The Judge applied a starting point of five years'imprisonment, well below the entry point, because of his appreciation of the verylimited role played by Ms Phillips in an operation essentially conducted by Mr Smith.We do not think he was wrong to do so. For present purposes, therefore, we see noneed to alter the starting point — bearing in mind also that the Crown does notchallenge the sentence imposed.[219] We agree with the one year uplift imposed for Ms Phillips' personal drugdealing charges. This results in a global starting point of six years. The six monthuplift reflecting Ms Phillips' relevant previous convictions was also appropriate.[220] Ms Phillips does not challenge the discounts given for time spent on restrictivebail and remorse. We agree those discounts were appropriate. The material beforethe Judge supported a finding that Ms Phillips displayed genuine and significantremorse.124 R v Phillips, above n 118, at [21].[221] In relation to Ms Phillips' personal circumstances, the discount of nine monthsgiven by the Judge amounted to approximately 15 per cent. Ms Pecotic submitted thiswas inadequate. Ms Phillips' background as set out in the psychological report andthe affidavit she prepared for sentencing was directly linked to Ms Phillips' offending.She suffered from PTSD at the time of the offending. The traumatic event sheexperienced led to her consumption and ultimate addiction to methamphetamine.Consequently there is a clear documented nexus between her addiction and heroffending. Ms Phillips had also made significant progress in addressing the reasonsbehind her addiction prior to her remand in custody and had engaged in rehabilitation.[222] The Crown disputed the causal nexus alleged by Ms Phillips, pointing out thatMs Phillips indicated she was involved as a result of being "in love". On her ownaccount, addiction was not the only, or significant, causative factor. Further heroffending went well beyond what was required to feed her addiction. Apart from thetwo major supplies with Mr Smith, Ms Phillips had customers "all overthe North Shore, Whangarei and South Auckland and travelled large distances tosupply them at all hours of the day". The Crown submitted that the nine monthdiscount awarded was generous. Ms Phillips' circumstances were said to be anexample of a case where the mere presence of addiction will not necessarily have asignificant effect on the assessment of culpability in the absence of a proper causalconnection.[223] We consider that a discount was warranted to reflect Ms Phillips' personalcircumstances. It is apparent from the material before the Court that Ms Phillips hasexperienced significant trauma in her past. The result of this trauma, and the volatilenature of relationships in which she has been involved, have contributed to discernibledepression and also led to her using methamphetamine as a coping mechanism.In consequence she became addicted to the drug, although she demonstrates the abilityto shake that addiction off with rehabilitative intervention. We accept that, to amoderate degree, combined mental health and addiction issues contributed tothe offending. We note also that the psychologist's report prepared for sentencingsuggested a long term of imprisonment may trigger Ms Phillips' PTSD and make anysentence more difficult for her, as she will experience high levels of distress.[224] We also consider the progress Ms Phillips made towards rehabilitation prior tosentencing deserves recognition. At the time of sentencing she was completingthe Salvation Army Residential Alcohol and Other Drug programme and had remainedaddiction free for some time. The pre-sentence report also indicated she was receivingcounselling. Considering Ms Phillips' personal circumstances in totality, we considera discount of 30 per cent is appropriate. To avoid doubt, this discount is imposedequally on the bases that Ms Phillips' mental health and addiction issues werecontributory, and that her personal circumstances would render a sentence ofimprisonment more severe than for another offender.[225] In respect of the 15 per cent guilty plea discount, Ms Pecotic submitted that theindication Ms Phillips would plead guilty was provided to the Crown well before trial,and the delay in entering the plea was because it took an inordinate length of time toreach agreement on the summary of facts. In terms of consistency, Ms Phillips oughtto have been given the discount of approximately 20 per cent which was the creditpermitted to the other offenders involved in the operation as part of a sentenceindication process.[226] The Crown submitted that the 15 per cent discount was appropriate, noting thatall circumstances in which a plea has been entered must be taken into account.125Ms Phillips benefited from a negotiated summary of facts, on which she wassentenced. This resulted in delayed entry of pleas, but Ms Phillips cannot claim thebenefit of both. Ultimately the plea was entered only a few weeks prior to trial, andconsequently was not at the first available opportunity. The discount awarded wasadequate.[227] We agree with the Crown. The 15 per cent discount awarded was appropriatein the circumstances, particularly given Ms Phillips did not engage in the sentenceindication process. However, the nine months' of further discounts given by the Judge— noted at [211] above — must carry through on appeal. The end result is a sentenceof three years and two months' imprisonment.125 Hessell v R, above n 38, at [62].Result[228] Ms Phillips' appeal is allowed. Her sentence of four years and three months'imprisonment is quashed and substituted with a sentence of three years andtwo months' imprisonment.Jacqueline Josephine Hobson[229] Ms Hobson pleaded guilty to and was convicted of three charges of importingmethamphetamine, three charges of possession of methamphetamine for supply andone charge of conspiracy to import methamphetamine. Judge Andrée Wiltenssentenced Ms Hobson to nine years' imprisonment on these charges, with a four and ahalf year minimum period of imprisonment.126[230] Ms Hobson appeals against her sentence, saying the starting point wasmanifestly excessive as the Fatu bands are now inappropriate; there was a lack ofparity with co-offenders; and the minimum period of imprisonment was imposed inerror. Ms Hobson does not appeal the discounts given by the Judge for her personalcircumstances and guilty plea.Leave to appeal out of time[231] Ms Hobson's appeal was filed approximately 13 months out of time.Ms Hobson has applied for an extension of time to file her appeal.127 The Crown doesnot oppose the extension. We are satisfied it is appropriate to grant an extension oftime to appeal and do so accordingly.Background[232] In February 2015, the New Zealand Customs Service commenced aninvestigation into the importation and distribution of methamphetamine by Ms Hobsonand three co-offenders. The charges related to three successful importations ofmethamphetamine into New Zealand and one importation that was intercepted inThailand.126 R v Hobson [2017] NZDC 18173.127 Criminal Procedure Act, s 248(4).[233] Ms Hobson's involvement was identified through text message content.Ms Hobson would text an addressee's name and postal address to the supplier inThailand. A package containing methamphetamine would then be sent from Thailandto New Zealand. Three of the packages that arrived in New Zealand were collectedby a co-offender and delivered to Ms Hobson. Ms Hobson would then preparethe methamphetamine for sale, with a co-offender assisting by providing equipmentto weigh and package the drugs on one occasion. Ms Hobson would supply quantitiesof the drug to various persons for onward dealing, then collect the money owed fromthe sales and arrange the remittance of that money to Thailand as payment forthe drugs; sometimes via her co-offenders.[234] The quantity of methamphetamine identified by police in relation tothe successful importations was a minimum of 300 grams. The failed importation(which was intercepted in Thailand) related to 290 grams of methamphetamine.The social costs associated with the former quantity alone would be some $371,000.128Sentence appealed[235] Given that a minimum of 300 grams had been imported, the Judge consideredMs Hobson's offending to fall within band three of Fatu, a starting point range of nineto 13 years' imprisonment. Had the conspiracy to import been successful, the further290 grams would have placed Ms Hobson in band four, with a starting point between12 years and life imprisonment. Taking these factors into account, the Judgeconsidered that a starting point of 12 years' imprisonment was appropriate, reflecting10 years for the importation charges and an uplift of two years for the conspiracycharge. In setting this starting point, the Judge had regard to the fact that Ms Hobsonwas an organiser of the importation, rather than a courier or a mule, and therefore hada significant role in the offending.129[236] Although accepting that Ms Hobson's personal circumstances as reflected inthe pre-sentence report were positive, the Judge considered this secondary to her128 See above at [80].129 R v Hobson, above n 126, at [4]–[7] and [9]–[10]. The Judge considered a four year uplift wouldhave been appropriate for the conspiracy charge but given an indication in the prosecutionsubmissions that they would only seek a one year uplift had given Ms Hobson a "certainexpectation", settled on a two year uplift.significant criminal culpability, and therefore of limited assistance in terms ofmitigation. The Judge also had regard to the sentences imposed on Ms Hobson'sco-offenders, but noted that their roles were much lesser and personal circumstancesmore significant. In light of Ms Hobson's possible rehabilitation in time, the need toimpose the least restrictive outcome, her late guilty plea and personal circumstancesand community support, the Judge reduced the starting point by 20 per cent, roundingthe sentence down to a total of nine years' imprisonment to be served on all chargesconcurrently.130[237] The Judge also considered a minimum period of imprisonment was necessaryto reflect that the offending involved importing three separate lots ofmethamphetamine, an attempt to import a fourth, larger lot, and selling it in thecommunity. The Judge therefore imposed a four and a half year minimum period.131Discussion[238] Applying the new guidelines to Ms Hobson's offending, the quantity importedfits into band three (being more than 250 grams but under 500 grams). That attracts apotential sentence of six to 12 years' imprisonment. The amount concerned is justabove the start of band three. Ms Hobson's role sits at the lower end of "leading",having a management function within the organisation and being in contact with thesupplier in Thailand, but in a relatively unsophisticated operation. The summary offacts also suggests Ms Hobson, at least in the mid-to-latter stages of her offending wasprimarily motivated by financial gain. She was a user, but not addicted tomethamphetamine. Consequently, the appropriate starting point under the proposedframework would be at the mid-point of the six to 12 year band. A starting point ofnine years' imprisonment would be appropriate on the importation charges.[239] Had Ms Hobson succeeded with the further offence of conspiracy, the totalamount supplied would have been 590 grams of methamphetamine, warranting astarting point of 10 years and six months' imprisonment under the new sentencing130 At [11]–[13] and [15].131 At [16] and [17].guidelines.132 Allocating half of that potential increase for the incomplete offence hasbeen identified by this Court as the correct approach.133 On this basis, an uplift ofnine months is appropriate.[240] It is difficult to assess the 20 per cent global discount adopted by the Judgewithout that figure having been broken down. However, we consider that a 10 per centdiscount for Ms Hobson's potential for rehabilitation and a 10 per cent discount forher guilty plea is generous but within range. This results in an end sentence ofseven years and 10 months' imprisonment, to be served on all charges concurrently.[241] In respect of parity, Mr Bailey submitted that Ms Hobson's co-offender,Ms Matiu was given a starting point of four years' imprisonment, despite beinginvolved in all three importations (and therefore fitting into band three of Fatu, whichshould apply regardless of role).134 This manifestly inadequate starting point,combined with an excessive discount, resulted in an end sentence of nine months'home detention. There was such a disparity between Ms Matiu's sentence andMs Hobson's that intervention was required in the form of a reduction in Ms Hobson'ssentence.[242] We do not consider Ms Hobson's sentence ought to be lowered on this basis.Although it is generally desirable that there is consistency of sentences betweenoffenders committing the same or similar offences,135 this principle is not absolute.136Rather, the question is whether a reasonable-minded independent observer, havingregard to all the circumstances, would think that something had gone wrong withthe sentencing process.137 A lenient or unusually merciful sentence extended to oneoffender cannot create a legitimate expectation that other related offenders will receivethe same indulgence.138 Here, Ms Hobson was significantly more culpable thanMs Matiu, being the leader of the operation.139132 However, the maximum penalty for conspiracy to supply a Class A drug is 14 years' imprisonment:Misuse of Drugs Act, s 6(2A).133 Parata v R [2017] NZCA 48 at [5].134 R v Matiu [2016] NZDC 14859.135 Sentencing Act, s 8(e).136 O'Sullivan v R [2015] NZCA 147 at [21].137 At [21], citing R v Lawson [1982] 2 NZLR 219 (CA) at 223.138 Anderson v R [2019] NZCA 294 at [39], citing Macfarlane v R [2012] NZCA 317 at [24].139 See, for example, Chen v R [2019] NZCA 299 at [54].Minimum period of imprisonment[243] Finally, Ms Hobson submitted that the Judge misapplied the s 86 statutorycriteria and/or placed too much emphasis on deterrence and therefore wronglyimposed a minimum period of imprisonment.[244] We accept this argument. There is nothing out of the ordinary aboutMs Hobson's offending. Although she was in essence running the operation, it wasrelatively small. Ms Hobson's risk of reoffending was assessed in the pre-sentencereport as medium but her rehabilitative prospects and ability to comply with anysentence imposed were high. She had accepted responsibility for her actions and,although she had prior criminal convictions, none were for drug dealing. Her degreeof insight into her offending made her, in the view of the pre-sentence report writer, asuitable candidate for a short rehabilitative programme. In due course Ms Hobson willreturn to the community within New Zealand. There are at least reasonable prospectsthat she will not re-engage in drug-dealing. We think this is a case where rehabilitativeprospects must be given their ordinary scope, if possible. The extent of offending,although grave, does not call for unusual intervention. In these circumstances, we donot consider the concerns of deterrence or protection of the community (or any of theother purposes in s 86(2)) to be engaged such as to warrant the imposition ofa minimum period of imprisonment.Result[245] We allow Ms Hobson's appeal, quashing her sentence of nine years'imprisonment and substituting a sentence of seven years and 10 months'imprisonment, to be served on all charges concurrently, with no minimum period ofimprisonment.Jing Yuan Zhang[246] Mr Zhang pleaded guilty to and was convicted of one charge of importing17.9 kilograms of methamphetamine. Judge Johns sentenced him to eight years andsix months' imprisonment with a 50 per cent minimum period of imprisonment(that is, four years and three months).140[247] Mr Zhang appeals the imposition of the minimum period of imprisonment onthe basis that it is manifestly excessive.Background[248] Mr Zhang is a Canadian national. He arrived in New Zealand on 24 January2018 with a female associate and was issued with a three month visa permit.[249] On 20 February 2018, a courier consignment, labelled as "toner", arrived inNew Zealand addressed to Mr Zhang from the United States. On 22 February,New Zealand Post, after deeming the consignment to be of a commercial nature,contacted the importer advising that the consignment required customs clearancebefore it could be released. Mr Zhang contacted the New Zealand Customs Serviceon 13 March and subsequently obtained an importer code. On 15 March,the consignment was examined by customs officers. There were twelvetoner cartridges, containing approximately 18 kilograms of a white powder substance.When tested on site, the presence of methamphetamine was identified.[250] The powder was replaced with a placebo substance and a controlled deliveryof the packages was conducted on 21 March at approximately 12.26 pm.141 Mr Zhangaccepted delivery. At about 3.30 pm he left the address and bought two 20 litrecontainers, a large plastic spoon, a plastic mallet, a set of scales and ziplock bags.At about 6.00 pm customs officers executed a search warrant at the address.They found Mr Zhang in the kitchen. Of the three packages delivered earlier, one waslocated in the lounge and the other two in a bedroom. The package in the lounge wasopen and the placebo substances had been extracted and placed into two plastic bags.The other two packages were unopened. The search also uncovered threemobile phones, a laptop and the items purchased earlier. Mr Zhang was arrested.140 R v Zhang [2018] NZDC 19381.141 Misuse of Drugs Amendment Act 1978, s 12.[251] Subsequent testing established that there was 17.9 kilograms of powder whichcontained methamphetamine with a purity of 80 per cent. The Judge said this quantityof methamphetamine would be worth between $4,743,000 and $8,950,000.142The social harm caused by a successful importation and distribution of this quantitywould be of the order of $22 million.143Sentence appealed[252] The Judge set a starting point of 17 years' imprisonment in band four ofFatu.144[253] The Judge noted that Mr Zhang was remorseful, had no previous convictionsand was previously of good character and living a productive life. The Judge alsoreferred to "additional information" she had received the benefit of, which Mr Zhangsays reflects the fact that he cooperated with and assisted the New Zealand CustomsService. Mr Zhang also pleaded guilty at an early opportunity. The Judge determinedthat a 50 per cent total discount for all these factors was appropriate. This broughtthe end sentence to eight years and six months' imprisonment.145[254] The Judge imposed a 50 per cent minimum period of imprisonment. In doingso, the Judge referred to the purposes in s 86 of the Sentencing Act and said she neededto consider if the usual parole period would be insufficient for any of the purposesspecified therein. The Judge further held that:[26] In cases involving significant importations of methamphetamine andthe like minimum terms of imprisonment are routinely in fact nearly alwaysimposed, and whilst you have received a significant discount, it does notdetract from the serious offending that you were involved in. In my view is ifyou were to be paroled on the first occasion, it would not be sufficient to holdyou accountable for the harm done nor denounce your conduct or try and deteryou and others from like offending. My view is that, in the circumstances,a minimum period of imprisonment of 50 percent should be imposed.142 R v Zhang, above n 140, at [10].143 See above at [80].144 R v Zhang, above n 140, at [22].145 At [11], [23]–[24] and [27].Discussion[255] Though Mr Zhang does not appeal his sentence (merely the imposition ofthe minimum period of imprisonment), we make a brief comment on how the newsentencing guidelines would apply to Mr Zhang's offending. First, the quantity atissue falls clearly into category five (being well over two kilograms).[256] We would assess the role played by Mr Zhang as significant, but at the lowerend. He served an operational function within a chain, travelling to New Zealand tomeet a consignment of drugs once it arrived and taking steps to ensure it clearedcustoms. Moreover, the actions he took after he received the consignment indicatethat he was intending to package it for sale. In that respect, Mr Zhang was more thanmerely a "catcher". However, there is no evidence demonstrating that he was to takean active role in the supply stage of the operation. In his pre-sentence report interviewMr Zhang indicated that he was being supplied with money for receiving the packages,but the quantity or relative proportion of that compensation is not in evidence. There isalso no evidence that he was involved in directing others in the operation and hehimself appears to have been receiving instructions from someone higher up in thechain of command.[257] The available range of starting points is between 10 years' andlife imprisonment. Because Mr Zhang's role is at the lower end of significant, but theimport involves a large quantity of methamphetamine, with potentially very seriousconsequences, we would have set the starting point at 15 years' imprisonment.[258] As discussed, the Judge gave discounts totalling 50 per cent. The correctsentencing methodology is to apply any discounts for personal mitigating factors first,followed by any discounts for guilty pleas. The Judge should not have combined thesediscounts together. However, our view is that the discounts given by the Judge couldproperly be divided into a 30 per cent discount for personal mitigating factors and a20 per cent discount for the guilty plea.[259] We consider the 30 per cent discount for personal mitigating factors to bewithin range. The 20 per cent guilty plea discount is also appropriate, Mr Zhanghaving pleaded guilty at an early stage.[260] Applying these discounts in the correct order, Mr Zhang's end sentence wouldhave been eight years and five months' imprisonment. Had the sentence beenchallenged, we would not have disturbed it on appeal on the basis of this one monthreduction from the sentence in fact imposed.Minimum period of imprisonment[261] Mr Corlett submitted that Mr Zhang's sentence was manifestly excessivebecause a minimum period of imprisonment was neither necessary nor justified forany of the purposes of sentencing listed in s 86(2) of the Sentencing Act and thereforeshould not have been imposed. Mr Zhang's personal circumstances strongly indicatedthat a minimum period of imprisonment was not warranted, namely: that he was ayoung man, he accepted his role in the offending at the earliest opportunity andexpressed remorse, he was previously of good character and he was assessed as beingat low risk of reoffending.[262] The Crown submitted that the ordinary parole period would be insufficient tohold Mr Zhang accountable, denounce his conduct and deter others. Whilst the Crownaccepted that public protection was not a significant consideration, given Mr Zhanghas no previous convictions and has been assessed as posing a low risk of reoffending,it was noted that importing 17.9 kilograms of high purity methamphetamine intoNew Zealand is grave offending. The offending bears the hallmark of organisedtransnational criminals targeting New Zealand communities. Moreover, Mr Zhanghad no addiction issues so must have been motivated by profit, increasing theseriousness of the offending.146[263] Given that Mr Zhang is a first time offender and has been assessed at being atlow risk of reoffending, we accept that community protection alone would not justifya minimum period of imprisonment. The provision of assistance to authorities is alsoa factor weighing arguably against imposition of a minimum period of imprisonment.However, this was knowing participation in substantial, commercial-scale drugoffending with potentially very serious social consequences. It is unmitigated byvulnerability of any kind. Absent imposition of a minimum period, Mr Zhang would146 Relying on Nguyen v R [2007] NSWCCA 15.be eligible for release after just two years and 10 months' imprisonment. We considerthat would send an unacceptable message to those participating, or minded toparticipate, in commercial-scale drug dealing. Mr Zhang is now remorseful and heposes little future risk to New Zealand, but deterrence, denunciation and accountabilityfor commercial-scale drug offending, all require he serve a longer sentence than twoyears and 10 months' imprisonment. We therefore agree with the Judge that aminimum period of 50 per cent of the end sentence was justified in this case.Result[264] Mr Zhang's appeal accordingly is dismissed.Shane Thompson[265] Mr Thompson pleaded guilty to one representative charge of supplying4.2 kilograms of methamphetamine, and one charge of possessing 2.6 kilograms ofmethamphetamine for supply. Mr Thompson was sentenced by Judge Rea inthe District Court at Napier to 13 years' imprisonment on these charges, with a50 per cent minimum period of imprisonment.147 Mr Thompson appeals againstthe imposition of the minimum period of imprisonment only.Leave to appeal out of time[266] Mr Thompson's notice of appeal was filed approximately five months out oftime. The Crown does not oppose Mr Thompson's application for an extension oftime and we are satisfied an extension is appropriate in the circumstances. We grantan extension of time in which to appeal accordingly.Background[267] It was not disputed at sentencing that Mr Thompson was the principal offenderin an extensive methamphetamine distributing network which he had established inthe Hawke's Bay. The Judge described Mr Thompson as being in business in a verysophisticated and complex way and the most comprehensive methamphetamine dealer147 R v Thompson [2018] NZDC 11394.Hawke's Bay has ever seen. Mr Thompson was involved in supplyingmethamphetamine at both wholesale and retail level between November 2016 andSeptember 2017. He arranged for others to make deliveries and receive payments andwas constantly fielding calls or texts from lower level suppliers. Written records ofdeliveries were kept and there was a high turnover rate.148[268] A total of 4.2 kilograms of methamphetamine was supplied by Mr Thompson.On termination of the police operation that detected this offending, Mr Thompson wasfound in possession of a further 2.6 kilograms of methamphetamine, located at aco-offender's address. Mr Thompson himself did not use methamphetamine.The social harm associated with the successful distribution of these quantities wouldexceed $8 million.149Sentence appealed[269] The Judge set a starting point of 18 years' imprisonment, in band four of Fatu.A six month discount for time spent on electronically monitored bail was awarded, aswell as an agreed three month discount for the forfeiture of certain vehicles. A fulldiscount of 25 per cent was awarded for Mr Thompson's guilty pleas. The resultingsentence of 13 years' imprisonment was imposed concurrently on each charge.150[270] A minimum period of imprisonment of 50 per cent, being six years andsix months, was imposed. The Judge said:[14] There has been debate about a minimum non-parole period. It isalmost standard for somebody who operates methamphetamine dealing at thelevel you have, to incur a minimum non-parole period. In fact, the authoritiesshow pretty clearly that almost always anybody who is sentenced to nine yearsor more will receive a minimum non-parole period. They are necessary tohold you accountable for the harm that you have done to the community andto individuals by this offending. You probably do not see or accept that butthat is the very real truth of it.[15] Your conduct needs to be denounced and there needs to be a deterrentto you and to others involved in a similar offending. Lastly, and perhaps farmore importantly, there is a need to protect the community from the continueddistribution of this drug.148 At [4]–[5] and [8].149 See above at [80].150 R v Thompson, above n 147, at [11]–[13].[16] I set the minimum non-parole period at half of the sentence so therewill be a minimum non-parole period of six years and six months. Discussion[271] Though Mr Thompson does not contest his sentence of 13 years'imprisonment, as with Mr Zhang we make a brief comment on how the new sentencingguidelines would apply to Mr Thompson's offending.[272] Under the new sentencing guidelines, a starting point range of 10 years tolife imprisonment would apply to the supply charge. This reflects the fact that thequantity involved (4.2 kilograms) falls into band five. As the principal offender in alarge methamphetamine distribution network, Mr Thompson's role falls into the topend of the leading role band. A starting point of 16 years' imprisonment on the supplycharge is within the available range. A two year uplift to reflect the possession forsupply charge would also be appropriate. We therefore consider the Judge's startingpoint of 18 years' imprisonment on both charges to be within range under the newguidelines.[273] The discounts awarded by the Judge to reflect Mr Thompson's personalcircumstances were orthodox and would not be affected by the changes we havesignalled above.Minimum period of imprisonment[274] The question remains whether the Judge erred in imposing a minimum periodof imprisonment under s 86 of the Sentencing Act.[275] Mr Phelps for Mr Thompson submitted that the Judge simply imposed aminimum period of imprisonment to reflect the s 86(2) factors, without the nuancedanalysis that the section requires. On a fulsome analysis of Mr Thompson's personalcircumstances, a minimum period of imprisonment was inappropriate. Mr Thompsonaccepted responsibility at an early stage, had a relatively minor criminal history,151and had not been sentenced to imprisonment previously. The pre-sentence report was151 Consisting of nine District Court convictions, the majority being for driving offences.indicative of positive family support, and his risk of reoffending was assessed as beinglow. In these circumstances, any term of imprisonment let alone a term of 13 yearscarried with it in significant measure the purposes of deterrence, denunciation andaccountability. Mr Thompson's offending was not driven by an addiction tomethamphetamine, meaning his prospects of rehabilitation and reintegration weremore positive than those who had succumbed to addiction. It was submitted that giventhe nature of Mr Thompson's offending and the length of the sentence it was notfeasible that parole would in fact be granted at the one third mark.[276] The Crown submitted that a minimum period of imprisonment was justified.While acknowledging that Mr Thompson's attitude following arrest was to his credit,the Judge's characterisation of the methamphetamine operation illustrated just howserious his conduct was. Accountability and denunciation therefore assumedparticular importance in Mr Thompson's case. It was also suggested the absence ofaddiction could in fact be considered to increase the seriousness of the offending, asMr Thompson was not motivated by addiction but by profit — there being somethingparticularly insidious about offending that exploits others' addictions for financialgain. While Mr Thompson was assessed as having a low risk of reoffending, the highturnover and persistent nature of his operation while it was running meant the Judgewas entitled to consider public protection as a relevant factor. The Crown concludedthat Mr Thompson's offending, being large-scale and premised on the exploitation ofothers for the purpose of financial gain, properly engaged the criteria in s 86.[277] We begin by observing that, in accordance with the discussion above in thisjudgment, a sentence of nine years or above should not be viewed as a threshold abovewhich the imposition of a minimum period of imprisonment is expected.152 Rather ineach and every case an enquiry must be made as to whether the minimum period ofimprisonment that would otherwise apply would be insufficient to achieve theprescribed purposes in s 86(2).[278] We therefore agree with Mr Phelps that a more particular analysis of s 86 as itapplied to the current facts was required. We note Mr Thompson's acceptance of152 See above at [172].responsibility, his family support, and the fact he was assessed as being at a low riskof reoffending are factors which, as in Ms Hobson's appeal, tend against impositionof a minimum period of imprisonment. They are factors which arguably diminish thecommunity protection consideration in s 86(2)(d).[279] However, we consider the imposition of a 50 per cent minimum period ofimprisonment was nonetheless appropriate in this instance. We agree with the Crownthat accountability and denunciation assume particular importance in this case, suchthat s 86(2) is engaged. Mr Thompson established and led a very substantial operationof methamphetamine distribution and was engaged in the offending over a relativelylong period of time (almost one year). We do not accept that the absence of addictiontells against the imposition of a minimum period of imprisonment; rather we agreewith the Crown that it makes Mr Thompson's offending more serious and calls forgreater accountability. Mr Thompson's willingness to accept responsibility for hisactions, commendable as it is, does not detract from this analysis. To some extent itis recognised in the discount awarded for his early guilty plea, and we do not considera separate discount for remorse is warranted.[280] While Mr Phelps submitted it would be unlikely that Mr Thompson wouldreceive parole after the minimum one third period, this is a matter for the Parole Board.We do not consider it appropriate for the Court to speculate as to Mr Thompson'slikely release date. The statutory test is clear. We are satisfied that the minimum periodof imprisonment that is otherwise applicable would not be sufficient to holdMr Thompson accountable for the harm done to the community, denounce his conduct,and deter other persons from committing the same or a similar offence. Indeed, giventhe leading role played by Mr Thompson, unmitigated by vulnerability or youth,we consider a greater minimum period of imprisonment than 50 per cent might wellhave been justifiable.Result[281] Mr Thompson's appeal is dismissed.Lok Sing Yip[282] Mr Yip pleaded guilty to seven charges of methamphetamine offending —two of importing, two of supply and one of attempted supply, and two of possessionfor supply. These charges were all committed jointly with Messrs Kam and Chan.On 9 February 2016, Woodhouse J sentenced Mr Yip to 16 years and six months'imprisonment on the lead charge of importing, with an eight year minimum period ofimprisonment.153[283] Mr Yip appeals against his sentence on the basis that his starting point was toohigh in light of his role and the sentence of his co-offender, Mr Chan. Further disparityresulted from the imposition of a minimum period of imprisonment for Mr Yip but notMr Chan. A minimum period of imprisonment was not warranted.Leave to appeal out of time[284] Mr Yip's appeal was brought approximately two years and nine months out oftime. Mr Yip filed an affidavit in which he states that he expressed dissatisfaction withhis sentence after the sentencing, but trial counsel indicated it was satisfactory andshould not be appealed. His subsequent attempts to arrange for other lawyers to visithim to discuss his case were hindered by his lack of support in New Zealand and thefact he spoke limited English.[285] The Crown opposes this extension of time. In the ordinary course of events, adelay of this duration would require considerable scrutiny. However given the natureof this judgment, and acknowledging Mr Yip's personal circumstances, particularlythe difficulties associated with being a foreign national incarcerated in New Zealandwith limited English, we consider it is appropriate to grant an extension of time tobring the appeal and we do so accordingly.Background[286] Mr Yip was part of a criminal organisation based in Hong Kong.The organisation sent him to New Zealand to participate in the importation and153 R v Kam [2016] NZHC 110.distribution of methamphetamine. Mr Yip acknowledged that he was"effectively the person on the ground in New Zealand taking instructions fromHong Kong and passing these onto others".154[287] The lead importing offence occurred on 5 March 2015. A consignment wasimported on a ship. Approximately 60.9 kilograms of methamphetamine wasconcealed inside garden hoses in the container. The consignment was intercepted bypolice and customs officials. All but 20 grams of the methamphetamine was replacedwith a placebo. The consignment was delivered to a storage unit in Mt Eden on24 March. We note that the social harm associated with a successful distribution of60.9 kilograms of methamphetamine, had that occurred, would have been of the orderof $75 million.155[288] Mr Yip had arrived in Auckland on 14 March 2015 with his girlfriend— Ms Ng — and travelled to the South Island as part of a tour group. They bothreturned to Auckland on 19 March, travelled to Rotorua and stayed one night there,then travelled back to Auckland. On 20 March, Mr Yip and Ms Ng were picked up byMr Kam and Mr Chan and taken to an address where Mr Yip communicated with otheroperatives in Hong Kong and New Zealand about the importation and arrangingsupplies. Mr Yip was also involved in the methamphetamine extraction process.Finally, he arranged for the imported methamphetamine to be on-sold to variousclients.[289] The further instance of importing involved the importation of a packagedirected to the Mt Eden storage unit on 15 March 2015. It containedmethamphetamine crystals, the precise quantity of which could not be established,mixed with grey powder.156154 At [9].155 See above at [80].156 The other charges arose out of the lead offending: R v Kam, above n 153, at [10]–[13].Sentence appealed[290] Based on the lead charge of importing 60.9 kilograms of methamphetamine,the Judge set a starting point of 25 years' imprisonment.157[291] In respect of personal circumstances, the Judge considered Mr Yip's youth(he was 20 years old at the time of the offending); the lack of evidence that Mr Yipwas to take a share of the profit from the drug dealing, merely a "modest" payment of$10,000 (given the street value of the methamphetamine might have been around$60 million); the lack of previous convictions; genuine remorse; the fact Mr Yip spokeand likely read little English; and lack of family support in New Zealand. A three yearreduction was given for these circumstances (a 12 per cent discount). Mr Yip alsoreceived a 25 per cent discount for his guilty pleas, resulting in an end sentence of16 years and six months' imprisonment.158[292] The Judge then applied a minimum period of imprisonment of eight years onthe basis that s 86 of the Sentencing Act and relevant authorities clearly indicated aminimum period should be imposed.159 The sentences imposed for the other chargeswere to be served concurrently.Discussion[293] The quantity of methamphetamine imported in the lead offence is60.9 kilograms. Under the new guidelines, this falls into band five, well surpassingthe threshold of two kilograms and is high up in that category. We note thatthe sentencing Judge understood this to be the second largest seizure of importedmethamphetamine into New Zealand at that time.160[294] Regarding role, Mr Corlett submitted that more emphasis should have beenplaced upon Mr Yip's "limited" role in setting the starting point and not just onquantity. Mr Yip's role was also not so markedly different from that of his co-offenderMr Chan that a difference of five years in starting point was appropriate.157 At [19].158 At [21], [35], [37], [40] and [41].159 At [43] and [48(a)].160 At [8].[295] The Crown opposed the characterisation of Mr Yip's role as being "limited",submitting that Mr Yip's culpability was affected by the enormity of the operation andhis role was essential to the criminal enterprise — given he was the person "on theground" in New Zealand, and was involved in extraction and supply. The fact that hewas working for a fixed fee did not reduce his culpability.[296] In relation to the disparity argument, the Crown submitted that this Courtconsidered Mr Yip's role in Mr Chan's appeal and found that he had greaterresponsibility than his co-offenders. It was said that:161[23] Mr Yip was the more senior of the three and gave instructions inNew Zealand to both Mr Chan and Mr Kam. Mr Chan undertook tasks withMr Kam, but the evidence supports the conclusion that Mr Kam and Mr Yipheld positions of greater responsibility and undertook a wider range of tasksto facilitate the importation. Mr Kam and Mr Yip completed the paperworkin connection with the importation. Mr Chan had no role in that. Mr Kam andMr Yip were involved in the processing of the drug in New Zealand;"cleaning" or "drying" the drugs. Mr Chan played no role in that. Mr Kamand Mr Yip were involved in setting up supply transactions, as evidenced bycoded text communications. Mr Chan was not party to coded drugcommunications, playing only a minor role in the supply. Although each ofthe three men communicated with Hong Kong direct, the evidence as to thecircumstances of the offending and the roles played supports the conclusionthat Messrs Kam and Yip were more closely tied to the Hong Kong-basedcriminal organisation behind the importations and were higher in the hierarchyof that organisation.[297] The Crown said that Mr Yip's submission that Mr Chan was sentencedfollowing a trial in which Mr Yip did not participate, and was therefore unable tocontest factual assertions made about his role, was immaterial. The description ofMr Yip's role in Chan v R was consistent with the description of his role bythe sentencing Judge.[298] We would assess the role played by Mr Yip as a leading one. It seems that hehad substantial links to the Hong Kong criminal organisation from whom it appearsthe drugs were sourced, and had some importance in the hierarchy of that organisation.He relayed instructions from Hong Kong to other members of the operation inNew Zealand and supervised a co-offender. He must have understood the large scaleof the operation. He had oversight of the extraction process and brought materials to161 Chan v R [2018] NZCA 148.New Zealand to facilitate this. He was involved in setting up supply transactions.All these activities show that Mr Yip was involved in importing methamphetamine ona commercial scale. The pre-sentence report indicated that financial advantagewas the primary motivator for Mr Yip, in the form of a cash payment of around$10,000.[299] However, two factors prevent this offending from falling at the highest end ofthe leading role description. First, the compensation Mr Yip was to receive, thoughnot insignificant, was out of proportion to the quantity of drugs and the risk involved.The Judge noted that the street value of 60 kilograms of methamphetamine might bearound $60 million. There was no evidence that Mr Yip was to receive a share of theprofits beyond the one-off payment. Secondly, it does not appear that Mr Yip had asignificant amount of decision-making power. It appears that most decisions werereserved for members of the criminal operation in Hong Kong and were merely relayedto the New Zealand operatives by Mr Yip. The operatives in Hong Kongmasterminded the importing operation. Mr Yip was not the leader of that hierarchy,but an employee.[300] The starting point available under category five is in the range of 10 years tolife imprisonment. Because of the very high quantity and Mr Yip's mid-to-lower levelleading role in the offending, we would set the starting point at 23 years'imprisonment. In differing slightly from the Judge, we place somewhat greateremphasis on the two mitigating considerations noted in the preceding paragraph atstage one of the sentencing process. Given this adjustment to the starting point, thereis no need to consider the disparity argument any further.[301] Turning to personal circumstances, we agree that a discount is warranted forMr Yip's youth; his genuine remorse (as assessed by the Judge); lack of priorconvictions; limited English and the fact that his support systems were in Hong Kong.In particular, as discussed above, the denial of family support to foreign nationalsimprisoned for drug offending may be treated as a mitigating factor as it rendersa sentence of imprisonment more severe.162 This is such a circumstance. The discount162 See above at [163].was not contested by either party on appeal, and we consider a three year discount,which in light of the reduced sentence amounts to a 13 per cent discount, to beappropriate.[302] The Judge gave a full 25 per cent discount for the guilty plea. Although weconsider this discount generous, as Mr Yip did not indicate a definitive intention toplead guilty until seven months after he was charged, we do not propose to disturb ithere.[303] This results in an end sentence of 15 years' imprisonment.Minimum period of imprisonment[304] As noted by Mr Corlett, the Judge did not articulate reasons as to why aminimum period of imprisonment should be imposed. The Judge said:163Neither defence counsel submitted that there should not be a minimum periodof imprisonment. Section 86 of the Sentencing Act, and the authorities on thatprovision — the cases on that provision — indicate clearly that there shouldbe a minimum period of imprisonment, and there will be one of around 50%.[305] Mr Corlett said that this Court should consider the imposition of a minimumperiod of imprisonment afresh. A minimum period was not warranted in light ofthe fact that Mr Yip is a young foreign national with no previous convictions, who isremorseful and pleaded guilty, and who will be deported upon release.[306] The Crown submitted that a minimum period of imprisonment was warranted.Mr Yip's offending involved one of the most serious methamphetamine importationsin New Zealand history. Accordingly it was "difficult to see" how a standard one-thirdnon-parole period could adequately meet the purposes of accountability, deterrence,public protection and particularly the need for denunciation. In response to the pointsmade by Mr Yip the Crown submitted that the authorities show that a minimum periodof imprisonment may be imposed on a young person or a foreign national.164163 R v Kam, above n 153, at [43].164 Hart v R [2017] NZCA 521 at [15]; and O'Connor v R [2016] NZCA 414 at [34] and [40].[307] We note that the Judge should have provided reasons why a minimum periodof imprisonment was required to serve the purposes in s 86 of the Sentencing Act.[308] However, we are satisfied that, as in the appeal by Mr Zhang, a minimumperiod of imprisonment was required in this case. This was knowing participation insubstantial, commercial-scale drug offending with potentially extremely serious socialconsequences. Mr Yip played a leading role in organising that criminal activity, albeitat a mid-to-lower level. As in Mr Zhang's case, his participation was unmitigated byvulnerability of any kind. Absent imposition of a minimum period of imprisonment,Mr Yip would be eligible for release after five years' imprisonment. Again, weconsider that would send an unacceptable message to those participating, or mindedto participate, in commercial-scale drug dealing. The sheer scale of that offending,plainly appreciated by Mr Yip, means the considerations of deterrence, denunciationand accountability for commercial-scale drug offending all require he serve a longersentence than five years' imprisonment. A minimum period of imprisonment of50 per cent of the end sentence was justified in this case. But for the factors mitigatingthe extent to which Mr Yip undertook a fully leading role, and his youth, it mightjustifiably have been higher.Result[309] The appeal is allowed. The sentence imposed of 16 years and six months'imprisonment is quashed and is substituted with a sentence of 15 years' imprisonmenton the lead importing charge, to be served concurrently with the sentences imposed bythe sentencing Judge on the other charges.[310] The minimum period of imprisonment on the lead importing charge is quashedand substituted with a minimum period of imprisonment of seven years andsix months.E. RESULT[311] We set out the results in the order analysed above.CA783/2018 Crighton v R[312] The application for leave to bring a second appeal is granted.[313] The appeal against sentence will be allowed, but further submissions are soughton formal disposition of the appeal in light of [201] and [202] of the judgment.CA771/2018 Phillips v R[314] The application for an extension of time to appeal is granted.[315] The application to adduce further evidence on appeal is declined.[316] The appeal against sentence is allowed.[317] The sentence of four years and three months' imprisonment is quashed andsubstituted with a sentence of three years and two months' imprisonment.CA617/2018 Hobson v R[318] The application for an extension of time to appeal is granted.[319] The appeal against sentence is allowed.[320] The sentence of nine years' imprisonment is quashed and substituted with asentence of seven years and 10 months' imprisonment.[321] The minimum period of imprisonment is quashed.CA606/2018 Zhang v R[322] The appeal against sentence is dismissed.CA726/2018 Thompson v R[323] The application for an extension of time to appeal is granted.[324] The appeal against sentence is dismissed.CA750/2018 Yip v R[325] The application for an extension of time to appeal is granted.[326] The appeal against sentence is allowed.[327] The sentence of 16 years and six months' imprisonment is quashed andsubstituted with a sentence of 15 years' imprisonment.[328] The minimum period of imprisonment is quashed and substituted with aminimum period of imprisonment of seven years and six months.Solicitors:Bamford Law, Nelson for Appellant CrightonCrown Law Office, Wellington for RespondentHuman Rights Commission, Wellington for Human Rights Commission as IntervenerGibson Sheat, Lower Hutt for New Zealand Law Society and New Zealand Bar Association asIntervenersPublic Defence Service, Wellington for Public Defence Service as IntervenerKāhui Legal, Wellington for Te Hunga Rōia Māori o Aotearoa as IntervenerSCHEDULE — GRAPHS REFERRED TO AT [94] OF THIS JUDGMENTWe provide these notes for the reader:(a) The first graph shows the correlation between starting point andquantity across all Fatu bands.(b) There is then a graph for each Fatu band.(c) The final graph captures part of the data shown in the penultimategraph, for Fatu band four.(d) When we have sorted the data into bands, we have done so accordingto the quantity that the band captures (except for one charge ofmanufacturing based on an amount less than five grams that has beenplaced in band two, given there is no band one for manufacture).(e) Red lines to the side of the graphs indicate the range of starting pointsthat Fatu says should be used for quantities within that band (all formsof offending).(f) Crosses on the first graph and band four graphs are sentences oflife imprisonment.0510152025300 20000 40000 60000 80000 100000 120000Starting Point (years)Quantity (g)Methamphetamine sentencing: quantity compared to starting point of sentences00.511.522.533.544.550 0.5 1 1.5 2 2.5 3 3.5 4 4.5Starting Point (years)Quantity (grams)Fatu band one: quantity compared to starting point0246810120 25 50 75 100 125 150 175 200 225 250Starting Point (years)Quantity (grams)Fatu band two: quantity compared to starting point0246810121416250 275 300 325 350 375 400 425 450 475 500Starting Point (years)Quantity (grams)Fatu band three: quantity compared to starting point051015202530500 10500 20500 30500 40500 50500 60500 70500 80500 90500 100500Starting Point (years)Quantity (grams)Fatu band four: quantity compared to starting point051015202530500 1500 2500 3500 4500 5500 6500 7500 8500 9500Starting Point (years)Quantity (grams)Fatu band four: quantity compared to starting point(amounts under 10,000 grams)