KENNY LESLIE MCMILLAN v R [2022] NZCA 128

KENNY LESLIE MCMILLAN v R [2022] NZCA 128 [11 April 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA505/2021[2022] NZCA 128BETWEEN KENNY LESLIE MCMILLANAppellantAND THE QUEENRespondentCA572/2021BETWEEN ROBERT JASON TAUIAppellantAND THE QUEENRespondentCA604/2021BETWEEN THE QUEENAppellantAND JASON BRENDON PHILIPRespondentHearing: 23 February 2022 (further material received 24 February 2022)Court: Dobson, Brewer and Edwards JJCounsel: J J Rhodes for Appellant in CA505/2021G J Burston, T G Bain and A G McCluskey for Respondent inCA505/2021 and CA572/2021 and Appellant in CA604/2021T M Cooper for Appellant in CA572/2021PVC Paino for Respondent in CA604/2021Judgment: 11 April 2022 at 1.00 pmJUDGMENT OF THE COURTCA505/2021 McMillan v RA The appeal against sentence in dismissed.CA572/2021 Taui v RB The application for an extension of time to appeal is granted.C The appeal in dismissed.CA604/2021 R v PhilipD The appeal is allowed.E The sentence of home detention imposed in the High Court is quashed.F A sentence of two years and 11 months' imprisonment is substituted.G The sentence of imprisonment is to take effect from 3:00 pm on Tuesday 12April 2022. The current sentence of home detention is to continue in effectuntil that time.H Mr Philip must surrender himself to the Prison Director at Manawatu Prisonat 3:00 pm on Tuesday 12 April 2022 to commence his sentence ofimprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)Table of ContentsMCMILLAN v R CA505/2021 [2]Introduction [2]The finding on the quantity of methamphetamine: [6]The starting point [26]Uplift [39]Mitigating factors [42]Result [54]TAUI v R CA572/2021 [55]Introduction [55]The disputed facts hearing [59]Role [75]The starting point [80]Uplifts [86]Mitigating factors [88]Was the sentence manifestly excessive? [96]Result [97]R v PHILIP CA604/2021 [99]Introduction [99]Altering the factual basis for the starting point [107]Reconsideration of the sentence [137]Result [157][1] These three appeals were heard together because the appellants in the first twoappeals and the respondent in the third appeal were all charged in relation tomethamphetamine dealing as a result of the same police operation. Messrs McMillanand Taui appeal against their sentences of, respectively, 18 years' imprisonment witha minimum period of imprisonment (MPI) of seven years and two months,1 and11 years' imprisonment.2 The Solicitor-General has appealed in Mr Philip's case onthe ground that a sentence of 12 months home detention was manifestly inadequate.3MCMILLAN v R CA505/2021Introduction[2] Mr McMillan was convicted of two specific charges of supplyingmethamphetamine and two representative charges of doing so plus four charges ofpossession of methamphetamine and a further charge of failing to carry out obligationsin relation to a computer search.4 He pleaded guilty to all bar the two most seriouscharges of which a jury subsequently found him guilty. Those two charges related tohis purchases of methamphetamine from Auckland.[3] After his trial the differences as to the quantity of methamphetamine involvedin the offending were addressed at a disputed facts hearing on the one of tworepresentative charges in respect of which quantity was contested. The Judge ruled1 R v McMillan [2021] NZHC 2118 [McMillan sentencing notes].2 R v Taui [2021] NZHC 2123 [Taui sentencing notes].3 R v Philip [2021] NZHC 2393 [Philip sentencing notes].4 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a); s 6(1)(c) and (2)(a); and Search and SurveillanceAct 2012, s 178.that at least seven kilograms of methamphetamine had been supplied.5 A further 3.37kilograms was involved in the other charges where quantity was not disputed soGwyn J sentenced Mr McMillan on the basis that 10.37 kilograms had been supplied.6[4] The Judge adopted a starting point of 17 years' imprisonment reflecting thatquantity and Mr McMillan's leading role in the Wellington operation.7 The Judgeuplifted the starting point by one year to reflect previous convictions and was notprepared to afford a discount for late guilty pleas for some of the charges, or forMr McMillan's personal circumstances.8 The end sentence was accordingly 18 years'imprisonment. An MPI of seven years and two months, amounting to 40 per cent ofthe end sentence, was also imposed.9[5] Mr McMillan appealed his sentence on five grounds, namely:(a) the quantity of methamphetamine was overstated because the Judge haderred in making the relevant findings at the disputed facts hearing;(b) the starting point adopted was excessive by comparison with co-defendants;(c) the 12-month uplift for previous convictions was excessive;(d) insufficient credit was given for factors raised in a report providedunder s 27 of the Sentencing Act 2002; and(e) the imposition of a minimum non-parole period was not warranted.The finding on the quantity of methamphetamine:[6] By the time of the disputed facts hearing, differences were narrowed to onlychallenge the quantity of methamphetamine involved in charge 7. That was a5 R v McMillan [2021] NZHC 1993 [McMillan disputed facts hearing] at [57].6 At [13] and [67].7 McMillan sentencing notes, above n 1, at [30].8 At [32]–[38].9 At [39]–[44].representative charge that Mr McMillan had, between 1 December 2018 and9 March 2019, together with other defendants, supplied methamphetamine to thirdpersons. The Crown contended that the supply of 14 kilograms during that periodcould be made out, which equated to two kilograms on each of seven deliveries ofmethamphetamine from a wholesale supplier in Auckland. In contrast, Mr McMillancontended that the quantity was three kilograms on the basis that he was only involvedin three of the seven deliveries in the relevant period, involving one kilogram on eachoccasion. The Judge's determination was that Mr McMillan was involved in all sevenconsignments, of at least one kilogram each.10[7] The Wellington-based police operation resulting in the charges againstMr McMillan and his co-defendants had been run in tandem with an operation inAuckland that focused on the wholesale supply of methamphetamine by a Mr Jamesand his co-offenders. Mr James was the source of the majority of methamphetaminedelivered by co-defendants to Mr McMillan in Wellington, until near the end of hisrelevant criminal activity when Mr McMillan was forced to obtain methamphetaminefrom an alternative source.[8] One of those involved with Mr James in Auckland (X) had agreed to giveevidence for the Crown at the trial of the remaining Auckland defendants. A witnessstatement prepared for X was put before the Judge at the disputed facts hearing. TheCrown did not oppose the Judge having the statement notwithstanding the submissionthat it was inadmissible hearsay.11 The Judge was disinclined to place reliance on X'switness statement as evidence distancing Mr McMillan from the consignments ofmethamphetamine.12 In addition, Mr McMillan gave evidence and wascross-examined at the disputed facts hearing. The Judge rejected Mr McMillan'sevidence as not being credible.13[9] On appeal, Mr McMillan has challenged the Judge's findings as to the quantityof methamphetamine on the grounds:10 McMillan disputed facts hearing, above n 5, at [53].11 At [35].12 At [36].13 At [38]–[48].(a) first, that there was insufficient evidence to draw inferences beyond areasonable doubt that Mr McMillan was responsible for all of the seventrips by his associates to transport methamphetamine from Auckland toWellington, and that all of those seven trips were undertaken under hisdirection and with his knowledge; and(b) second, the complete rejection of X's witness statement wasinadequately justified.[10] Mr McMillan denied any involvement in four of the trips to Auckland thatoccurred on 15–16 January, then on three dates in February 2019. He had been out ofNew Zealand between 5 and 21 January 2019. X's statement did not implicateMr McMillan in any of those trips and in his own evidence Mr McMillan said thatthey were undertaken without his involvement. Given that evidence and the Judge'sacceptance of the lack of other evidence of direct involvement by Mr McMillan in thefour trips in question, Mr Rhodes, counsel for Mr McMillan, submitted that there wasinsufficient other evidence to justify the inferences that Mr McMillan was involved intransporting methamphetamine on those trips.[11] Mr Rhodes submitted that the Judge provided inadequate grounds for herblanket rejection of Mr McMillan's evidence on the basis that she found him notcredible.[12] The Judge set out a number of reasons why she found Mr McMillan not to becredible.14 In cross-examination Mr McMillan was questioned about the content oftwo affidavits he had sworn in support of an appeal against the District Court's refusalto grant him bail. Mr McMillan acknowledged that he had lied in two statements hemade in his affidavits that involved attempts to downplay his participation in therelevant offending.[13] In oral submissions, Mr Burston, counsel for the Crown, sought to supplementthe evidence of pervasive lying by Mr McMillan with references to a post-sentencingcharge brought against him for attempting to pervert the course of justice.14 At [38]–[47].Recorded conversations relevant to that further charge would indicate, on the Crown'sview, that Mr McMillan practices deception with those preparing reports about him.We find it neither necessary nor appropriate to have regard to those additional mattersin considering the present challenge to the Judge's findings in her disputed factsjudgment.[14] In addition to the general adverse observations on Mr McMillan's credibility,the Judge found much of the evidence that he had given at the hearing to be untrue.The Judge rejected Mr McMillan's attempts to minimise the extent of his purchasesand, for example, the reasons he had advanced for the demand for methamphetaminein Wellington allegedly dropping in January and February 2019.15 The Judge waswell-placed to apply logic and common sense in light of her observations of all of theevidence at Mr McMillan's trial.[15] A key component in the transporting of methamphetamine from Auckland toWellington was the use of two cars, first a Nissan Tiida and secondly a MitsubishiLancer, both of which had secret compartments built into them sufficient to hideconsignments of up to two kilograms of methamphetamine. The hidden compartmentswere only able to be opened by use of a closely guarded combination of electronicdirections. The evidence at Mr McMillan's trial was that these vehicles had beensupplied to Mr McMillan by Mr James, the Auckland supplier, for the purpose oftransporting methamphetamine.16[16] At the disputed facts hearing, Mr McMillan stated that associates of his hadcontrol of these two vehicles on the occasions when there was no evidence of his directinvolvement. Mr McMillan claimed that associates must have used the vehicles fortheir own purposes on the remaining trips where he denied involvement. The Judgerejected that claim on the basis of evidence at his trial that he had retained close controlover the vehicles even when associates had some personal use of them.1715 At [43].16 At [45] and [52].17 At [44].[17] Having considered all the criticisms raised by Mr Rhodes, we are satisfied thatthe adverse credibility findings were clearly available to the Judge and were amplyjustified. We do not accept that an overall credibility finding adverse to Mr McMillanled to any blanket rejection of all elements of his evidence seeking to distance himselffrom the disputed consignments. The Judge did go on to consider each consignmentand acknowledged the lack of evidence of direct involvement by Mr McMillan in theperiod when he was out of New Zealand. The Judge found that the same modusoperandi applied on each occasion, with there being no plausible alternativeexplanation for taking the modified vehicles to Auckland. There was evidence ofcommunications from Mr McMillan to associates in New Zealand whilst he was outof the country on matters other than on the methamphetamine operation and there wasalso evidence that he used covert means of communicating about his dealings inmethamphetamine.[18] Given the evidence that the adapted courier vehicles were underMr McMillan's control throughout, and the absence of any evidence that the associateswho carried out the transporting of the methamphetamine undertook any dealingactivity on their own behalves, it was a safe and justified inference that the tripsoccurred at his direction. The vehicles had been supplied by Mr James toMr McMillan and there was a personal relationship between them, but not betweenMr James and Mr McMillan's co-defendants.[19] Mr Rhodes advanced an additional submission that the evidence did not justifythe finding that each of the trips in question was undertaken to transportmethamphetamine from Auckland to Wellington. He argued that the evidence couldnot exclude prospects of those involved (Mr Philip and his partner, Ms Hayman) hadtravelled to Auckland for other purposes, such as to carry cash to pay for previousconsignments or related to the purchase of vehicles from Mr James or businesses thathe was associated with. In this regard Mr Rhodes relied on X's statement that one ofthe disputed trips was only to drop off cash.[20] There was evidence of packages containing cash being carried into Mr James'spremises that were too large to have fitted in the secret compartments in the vehicles.It was therefore not necessary to use the modified vehicles on trips wheremethamphetamine was not to be transported back to Wellington. We agree that theJudge was entitled to disregard X's statement that one of the disputed visits byassociates of Mr McMillan to Mr James's Auckland premises was only to drop offcash. We are further satisfied with the Judge's references to evidence atMr McMillan's trial and the focus given to those trips in the disputed facts hearingjustified the Judge's finding that methamphetamine had been transported back toWellington on each occasion.[21] As to the rejection of X's witness statement the Judge recognised it was hearsayand found it of very little value because the Court had not heard from him, there hadbeen no opportunity for cross-examination,18 and the statement was prepared for thepurposes of the Auckland proceedings. That evidence did not focus on the quantitiesof methamphetamine that Mr James had sold to Mr McMillan. The absence ofevidence in X's statement that implicated Mr McMillan from X's perspective did notmean that Mr McMillan had not in fact been involved.19[22] We agree with the Judge that X's statement cannot avail Mr McMillan for thepurposes of distancing him from the four trips where there was no evidence of hisdirect involvement. X's statement was not prepared for the purpose of providing, andnor does it address, a credibly informed recollection of the extent of involvement byMr McMillan in directing those trips to occur. X would be motivated to downplayboth his own involvement and more generally the scale of Mr James' Aucklandoperation. The Judge was entitled to reject X's recollection that the 15–16 January2019 trip was only to drop off cash, given that it was untested and potentiallyunreliable given the context in which it was made. X's statement acknowledged thathe was not aware of every time that methamphetamine was uplifted from Mr James'premises.[23] Having disputed the finding of involvement by Mr McMillan in each of theseven trips, Mr Rhodes did not separately challenge the Judge's finding on thequantities of methamphetamine involved.18 X was in witness protection at the time.19 McMillan disputed facts hearing, above n 5, at [36].[24] The direct evidence of the intercepted trip in March 2019 was that twokilograms of methamphetamine was being carried in the secret compartment in theNissan Tiida. On that, and on X's statement, the Judge observed that there was apossible inference that the same quantity had been transported on the earlier trips.20However, the Judge concluded that the Crown had not proved that quantity on eachoccasion beyond reasonable doubt. Mr Philip and Ms Hayman had pleaded guilty tocarrying one kilogram per trip on those occasions and the Judge adopted the samequantity in her disputed facts judgment. That cautious approach cannot be criticised.[25] We accordingly reject the challenge to the quantity of the methamphetamineon which Mr McMillan was sentenced, as determined in the judgment following thedisputed facts hearing.The starting point[26] The Judge placed Mr McMillan's sentencing in band 5 of those provided in theguideline judgment in Zhang.21 That band applies to methamphetamine offendinginvolving more than two kilograms, with the starting points between 10 years and lifeimprisonment depending on the quantity of methamphetamine and the nature of therole played by an offender.22 Counsel representing Mr McMillan at sentencingcontended for a 10-year starting point whereas the Crown contended for18 years' imprisonment.[27] The Judge characterised Mr McMillan as having a leading role in asophisticated operation involving the buying and selling methamphetamine incommercial quantities. Mr McMillan directed the involvement of a number of others,used covert communications and amassed substantial assets consistently with earningvery extensive profits. Some assets were obscured by being in the ownership ofassociates. Mr McMillan had close links to Mr James, the original source of most ofthe methamphetamine.2320 At [56].21 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].22 At [123].23 McMillan sentencing notes, above n 1, at [25].[28] The Judge was mindful of the starting points adopted at the sentencings ofMr McMillan's co-offenders, but because none of them had a role comparable to his,the Judge did not undertake any measured relativity.24[29] Of the sentencings considered as comparable, the case of Thompson v R wastreated as the most similar.25 In that appeal this Court upheld a starting point of18 years' imprisonment where Mr Thompson had been a principal offender in anextensive and very sophisticated distribution network established by him. Hesupervised others over a 10-month period and was attributed with involvement indealing 6.8 kilograms of methamphetamine.[30] Mr Rhodes criticised the 17-year starting point adopted for Mr McMillan asexcessive on two grounds. First, relativity with the appeal of Thompson wasinappropriate because that appellant had accepted the 18-year starting point in anappeal that was confined to the imposition of an MPI. Mr Rhodes instead urgedcomparison with the appeal in Fangupo, and other sentencings that were referred to inthat appeal.26 The Judge had referred to the Fangupo judgment in her sentencinganalysis.27 Mr Fangupo was sentenced for importing 20 kilograms ofmethamphetamine and for other offending. The starting point in that case was reducedby this Court from 19 to 17 years.28 That judgment reviewed four othermethamphetamine sentence appeals in which offenders were found guilty ofinvolvement with larger quantities than Mr McMillan but lower starting points wereapplied.29 Those cases were:(a) Zhang: 17.9 kilograms, starting point of 15 years;30(b) Pai: 22.6 kilograms, starting point of 15 years;3124 At [26].25 Thompson v R in Zhang v R, above n 21, at [265]–[281] .26 Fangupo v R [2020] NZCA 484.27 McMillan sentencing notes, above n 1, at [27] and [29].28 Fangupo v R, above n 26, at [50].29 At [45]–[48].30 Zhang v R, above n 21, at [257].31 Pai v R [2020] NZCA 146 at [52] and [56].(c) Wan: 19.1 kilograms, starting point of 15 years;32 and(d) Berkland: 15 kilograms plus, starting point 16.5 years.33[31] Of those four cases, each of Zhang, Pai and Wan involved offenders whoseroles were described as being at the "lower end of significant" in terms of the levelsof roles spelt out in Zhang. In Berkland the offender was characterised as a trusteddeputy to the main offender and at "the upper end of significant".34 In Fangupo, theoffender was characterised as having a "moderately leading role".35 The participationof all those offenders is distinguishable from Mr McMillan who was in charge of theWellington operation. An additional measure of culpability has to be recognisedwhere the offender was at the top in organising and controlling a sophisticatedcommercial operation on the scale involved here. The relativity with thesecomparators was clearly open to the Judge.[32] The second ground for Mr McMillan's challenge to the starting point was thatit lacked relativity with the much lower starting points for his co-offenders, the nextlongest being 11 years shorter than that nominated for Mr McMillan. The submissionon that extent of difference in starting points overlooks that of Mr Taui where thestarting point was 12 years' imprisonment, presumably on the basis that he had notbeen sentenced when Mr McMillan was.[33] On this ground, the threshold for intervention is a high one. An unjustifiableextent of disparity has to be present to an extent that a reasonably minded observerwould be led to believe that something had gone wrong with the administration ofjustice.36[34] As this Court observed recently in Berkland, overly lenient treatment of oneoffender is not necessarily a ground for interfering with the sentences of a co-offender32 Wan v R [2020] NZCA 328 at [21]–[25].33 Berkland v R [2020] NZCA 150 at [56].34 At [50] and [56].35 Fangupo v R, above n 28, at [42].36 R v Hay [2015] NZCA 329, [2015] NZAR 1426 at [56], citing R v Lawson [1982] 2 NZLR 219(CA) at 223 as the leading authority on disparity between co-offenders' sentences. See alsoMacfarlane v R [2012] NZCA 317 at [24].which is otherwise appropriate.37 The differences in the roles of Mr McMillan on theone hand, and the co-offenders who had been sentenced before him were significant.Ms Hayman and Mr Philip were attributed with starting points of six years forrelatively trusted roles in transporting six kilograms of methamphetamine fromAuckland on a number of trips under Mr McMillan's direction.38 Mr Minns attracteda starting point of four years and six months for transporting a two-kilogramconsignment from Auckland halfway to Wellington and for his part in accompanyingMs Hayman and Mr Philip on an earlier trip.39 Mr Stone, a low-level associate whoaccompanied Mr McMillan on numerous aspects of the latter's activities (for exampledriving to covert car parks and with Mr McMillan to the airport) was attributed with astarting point of three years and six months.40 Mr Paulo, a functionary who wassentenced as a party to Mr McMillan's offending carried out limited tasks at the latter'sdirection and was attributed with a starting point of three years.41[35] The disparity with Mr McMillan's co-offenders may appear greater becausefor all except Mr Minns, mitigating factors resulted in sentences of home detention.Mr Minns was sentenced to two years' imprisonment which had already been servedby the time he was sentenced.42[36] We address Mr Philip's sentence in considering the Crown appeal against itbelow. As for the other co-offenders who had been sentenced at the time, we do notaccept that there is any concerning extent of disparity in the starting points adopted.The point not fully acknowledged in submissions for Mr McMillan is the significantlygreater culpability that attaches to the leading and controlling participant in asophisticated commercial methamphetamine dealing operation. We see the gulfbetween Mr McMillan and the lesser roles played by the co-defendants as generallynot out of proportion to the extent of differences between the starting points nominatedfor each of them.37 Berkland v R, above n 33, at [67].38 R v Hayman [2021] NZHC 642 at [38]; and R v Philip [2021] NZHC 2393 at [41].39 R v Minns [2021] NZHC 638 at [37].40 R v Stone [2021] NZHC 636 at [32].41 R v Paulo [2020] NZHC 1797 at [24].42 R v Minns, above n 39, at [49].[37] Mr Taui was sentenced after Mr McMillan. We consider his appeal below. Heenjoyed a measure of independence as a lower-level dealer. He was dealing to feed ahabit and although there was no evidence of his mode of on-selling the drug, he wassentenced on the basis of possession of 1.524 kilograms received from Mr McMillan.43That placed him in band 4 of Zhang with a starting point of 12 years imprisonment.44The difference of five years between that starting point and the 17 years chosen forMr McMillan was well within the range that can be expected given the differences inthe roles and the quantities of methamphetamine attributed to each of them.[38] Accordingly, we do not accept that the starting point adopted can be challengedon the ground of disparity with sentences for co-offenders.Uplift[39] After setting the starting point, the Judge considered whether an uplift waswarranted for previous convictions. She dealt with it in the following terms:45[33] Given the repetitive nature of this type of offending throughout yourhistory, in particular your pattern of re-offending shortly after release fromprison in 2005 and 2015, I consider an uplift is warranted. I impose an upliftof one year (just over 5 per cent) to reflect your previous convictions.[40] Mr Rhodes submitted the earlier convictions were too long ago and were notconnected to the current charges. Because all the offending was drug-related, it wassubmitted that drug addiction issues were a partial explanation, lessening thejustification for any uplift.[41] We consider that the pattern of serious drug offending reflected in theconvictions was appropriately characterised by the Judge and can find no fault in herimposing an uplift of one year.43 Taui sentencing notes, above n 2, at [5].44 At [21] and [31].45 McMillan sentencing notes, above n 1.Mitigating factors[42] Mr McMillan had pleaded guilty to seven of the nine charges he faced on theopening day of the trial. The two remaining charges were the most serious, and hewas convicted on both at the conclusion of the jury trial. The subsequent disputedfacts hearing to determine the quantity of methamphetamine involved resulted in therejection of his evidence on the basis that it was not credible. The Judge's view of thediscount for guilty pleas that had been entered was as follows:46[36] Your pleas were at the very last moment and did not shorten the trialtime required. They did little to facilitate the administration of justice. Nordid they demonstrate an acceptance of responsibility for the magnitude andseriousness of your offending. I do not consider a discount for your guiltypleas is warranted.[43] The approach on this consideration was clearly open to the Judge and we donot consider it leads to any error in constructing an appropriate final sentence.[44] Written submissions for Mr McMillan had complained that all the otherco-defendants had received recognition for personal mitigating factors when nodiscount was allowed in his case. The Judge was criticised for having inadequateregard to a s 27 report and other supporting material placed before the Court.[45] The Judge noted the reports of "some instability in [Mr McMillan's]childhood" and self-reporting of recurring problems with drug addiction. The Judgeconcluded that there was no strong evidence of the extent of childhood struggles, norof a causal connection between them and the current offending. There was accordinglyno discount given for personal mitigating factors.47[46] The s 27 report stated that Mr McMillan's father was a heavy drinker,occasionally violent, and frequently absent in his occupation as a merchant seaman.Mr McMillan's mother often left in sole charge of three children, was stressed and alsohad alcoholic tendencies. He was sent to a boarding school where he experiencedbullying and violence with an unspecified suggestion of sexual abuse. The report46 McMillan sentencing notes, above n 1.47 At [37]–[38].writers acknowledged that their assessment of his background depended largely onMr McMillan's self-reporting.[47] The writer of the Provision of Advice to Courts (PAC) report was wary of thegenuineness of what Mr McMillan told her in their interview, assessing him as havinga "sense of entitlement through believing he could influence the outcome of hissentencing while being interviewed".[48] Three further reports were also before the courts. First, an alcohol and otherdrug report prepared in September 2019 confirmed Mr McMillan fitted the criteria foradmission to a residential drug rehabilitation programme. The positive tone of thereport reflected the attitude conveyed by Mr McMillan to its writer. Secondly, aNovember 2020 Alcohol, Drug Assessment and Counselling (ADAC) report byMr Roger Brooking which confirmed that Mr McMillan meets the DSM-IV criteriafor polysubstance dependence, but also observed that he has managed long periods ofabstinence.48 The third of the reports was prepared in April 2021 by Mr RobertNawalowalo, which recommended that Mr McMillan be offered engagement in a drugtreatment unit whilst in prison but that the flight risk he represented would precludeprospects of any courses outside prison.[49] The Judge was also presented with letters of support from Mr McMillan'sparents and from a friend who considered he was in a position to help Mr McMillanbreak his perceived methamphetamine addiction.[50] The Judge was entitled to reject such materials that could have had a mitigatinginfluence on the final sentence. We agree that there was no material causal linkbetween the difficulties in his upbringing and the pattern of serious methamphetaminedealing.49 The offending went far beyond the lower level that would be required tomaintain a habit and the perceived lack of genuine appreciation in his self-reportingjustified a level of scepticism about the extent, if any, to which an addiction tomethamphetamine had driven his large scale dealing in the drug. The more48 The Diagnostic and Statistical Manual of Mental Disorders is a diagnostic system forpsychiatric disorders.49 Zhang v R, above n 21, at [147] and [159].sophisticated the conduct of a leading offender in methamphetamine dealing, the morecompelling the personal mitigating circumstances will need to be, to warrant adiscount for them.[51] Two further points raised in written submissions on the appeal are noted. First,it was submitted that an MPI was not required. In oral argument Mr Rhodes qualifiedthat by acknowledging that an MPI of 40 per cent of the end sentence could not bechallenged but that, if the sentence appeal was upheld, any MPI should beproportionately reduced. That point does not arise.[52] Second, a report from those managing the drug treatment unit atRimutaka Prison dated 18 February 2022 was filed shortly before the hearing. Itaddressed what was described as Mr McMillan's successful completion of a 12-weekprogramme in the unit. Mr Rhodes acknowledged it could not assist in making outany error in the sentencing as it related solely to conduct since that occurred. However,if this Court embarked on a resentencing, Mr Rhodes submitted that its positivecontent ought to be taken into account in the interests of justice. Again, the point doesnot arise so it is unnecessary to consider the admissibility of that report.[53] Standing back, in light of all submissions on the sentencing analysis, we aresatisfied that it was well within range.Result[54] Mr McMillan's appeal against sentence is dismissed.TAUI v R CA572/2021Introduction[55] Mr Taui was sentenced to nine years and one month's imprisonment for hisoffending.50 He appealed against that sentence on two main grounds, first, that thequantity of methamphetamine attributed to his offending after a disputed facts hearinghad not been proven beyond reasonable doubt and was overstated, and that his role in50 Taui sentencing notes, above n 2, at [56].the Wellington methamphetamine dealing operation was overstated. His secondground was that insufficient weight had been given to personal mitigatingcircumstances.[56] Mr Taui's appeal was filed six working days out of time. There had been achange of counsel and disruption with COVID-19 lockdowns. The Crown does notoppose leave and we accordingly grant the required leave for the appeal to becommenced out of time.[57] Mr Taui faced four charges of possession of methamphetamine for supply,51three relating to specific instances and the fourth brought as a representative chargecovering an alleged pattern of behaviour between 1 March 2019 and 2 May 2019. Inaddition Mr Taui was charged with possession of cannabis for supply52 and twocharges of unlawful possession, one each respectively of a firearm53 and ofammunition.54[58] Mr Taui pleaded guilty shortly before trial but then sought a disputed factshearing on the quantity of methamphetamine alleged to have been involved in hisoffending. The Crown alleged he had possession of at least 1.5 kilograms.55The disputed facts hearing[59] It was agreed that the Judge could take into account evidence fromMr McMillan's five-week trial over which the Judge had recently presided, for thepurposes of the disputed facts hearing.[60] Relevant context was also available from the summary of facts. Mr McMillanhad leased, through an associate's business, two spaces in a private car park inGilmer Terrace in central Wellington. Only those leasing spaces could access the carpark, with entry controlled by individual access cards. Mr McMillan had providedMr Taui with an access card for entry into the car park. The pattern was for them to51 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a).52 Section 6(1)(f) and (2)(c).53 Arms Act 1983, s 50(1)(a).54 Section 45(1).55 R v Taui [2021] NZHC 594 [Taui disputed facts hearing] at [10].visit the car park for short periods, usually sequentially but on one occasion at thesame time. The Crown case was that the only purpose for these visits was forMr McMillan to leave packages of methamphetamine to be uplifted by Mr Taui andfor Mr Taui to leave money to be uplifted by Mr McMillan. There was one occasionon which Mr Taui left methamphetamine to be uplifted by or on behalf ofMr McMillan.[61] The Judge separated the police observation of Messrs McMillan and Taui'sactivities covered by the representative charge into three categories. The first categorycovered activity in April 2019 when the police had been able to install covert CCTVrecorders within the Gilmer Terrace car park and another nearby car park on KumutotoLane. They were able to observe the exchanges of packages but were not able toascertain the contents of those uplifted by Mr Taui. One of the four instances of thisactivity included a meeting between the two at the Kumutoto Lane car park whereMr Taui took a package from Mr McMillan.56[62] The second category of police observations related to a period before the covertCCTV recorders were installed. During that period in March 2019 the observationswere of vehicles associated with Mr Taui or Mr McMillan, or Mr McMillan on foot,going into the Gilmer Terrace car park for short periods. This occurred on sevenoccasions.57[63] Third, there was a separate occasion on which the police intercepted a packageof cash left at the Gilmer Terrace car park by Mr Taui for Mr McMillan. The packagewas assessed as containing between $22,000 and $27,000 which the Crown contendedwould buy about four ounces of methamphetamine. Later the same day Mr Taui wasobserved visiting Mr McMillan's flat near to the car park.58[64] In addition to these three categories of observation, on 8, 12 and 14 April 2019the police intercepted packages between them being left by Mr McMillan and upliftedby Mr Taui. The police were able to ascertain their contents as methamphetamine and56 At [36].57 At [37].58 At [38].their weight. These three transactions led to specific charges of possession for supply,with one charge relating to each of the three occasions.[65] On the first occasion the Judge accepted the Crown projection from weighingfour out of six packages that Mr Taui had taken possession of 160 grams.59 On thesecond occasion a heat-sealed package containing a number of smaller sealable bagswas inspected and weighed at 306 grams. A spectrographic analysis (without openingthe package) confirmed the presence of methamphetamine. The Judge accepted theCrown analysis that this package would have contained 280 grams ofmethamphetamine.60 On the third occasion the package left by Mr McMillan wasfound to contain three smaller sealed bags with a total weight of 86.4 grams. Thecontents of that consignment were also confirmed to be methamphetamine. The Judgeaccepted the package would have contained 84 grams of methamphetamine.61[66] The Crown case was that there was sufficient evidence of a pattern to establishthat Messrs McMillan and Taui went to the car park only to exchangemethamphetamine for money so that the quantity should reflect a dealing on each ofthe 12 occasions covered by the representative charge. The Judge accepted beyondreasonable doubt that methamphetamine dealing had occurred on each of the 12occasions.62[67] On appeal Ms Cooper, counsel for Mr Taui, challenged that finding on avariation of the grounds that were argued at the disputed facts hearing. Ms Coopersubmitted that other explanations for a number of the visits to the car park could notbe discounted:(a) Before the CCTV recorders were installed there could not be a positiveidentification of Mr Taui as the driver of one of the four cars the Crowncase linked him to.59 At [26].60 At [30].61 At [34].62 At [44].(b) Nor could the prospect that he had entered the car park and not pickedup anything, or alternatively had been dealing in cannabis or somethingother than methamphetamine, be discounted. Arguably, the evidencedid not disclose a discernible pattern and the inferences drawndepended on guesswork and speculation.[68] Ms Cooper pointed to evidence of some occasions on which Mr Taui visitedthe car park without either leaving or taking away anything. However, the CCTVevidence shows that the occasions on which that occurred were followed in the sameday or the following day by a visit where a package was uplifted.63 There is also oneoccasion on 21 April 2019 which records Mr Taui entering the Gilmer Terrace car parkand checking the usual hiding place but does not remove or leave anything. However,later on this same day Messrs Taui and McMillan meet in person at the Kumutoto Lanecar park where Mr McMillan passes Mr Taui a package.64[69] We are satisfied that a consistent pattern of behaviour was made out. There isno suggestion that the April 2019 dealings between them (when observed by covertCCTV) differed from the relatively frequent sequence of the same type of visits thatpreceded those occasions. Evidence at Mr McMillan's trial established that he usedcovert communications so the absence of evidence of arrangements for dead letterdrops is explicable.[70] We agree that the Crown did establish beyond reasonable doubt thatmethamphetamine was uplifted by Mr Taui on each of the 12 occasions covered bythe representative charge.[71] As to the quantity of methamphetamine, the Crown averaged the weightsestablished from the intercepted packages and invited the Court to infer that theaverage of those three consignments, amounting to 175 grams, could be extrapolatedover the 12 occasions where unascertained quantities were involved. That wouldequate to Mr Taui taking possession of two kilograms of methamphetamine.63 For example, the visits at 17:34, then 18:43 on 2 April 2019.64 This Kumutoto Lane activity was one of the four occasions captured by CCTV referred to aboveat [60].Alternatively, if the smallest of those three intercepted consignments was treated as aminimum applying to all 12 occasions then the smallest quantity would be onekilogram.[72] Both approaches were criticised by Ms Cooper as involving guesswork, whichought not to have been accepted. However, it was accepted in submissions fromMr Taui that the dealing was on a commercial scale.[73] The Judge found that Mr Taui had purchased one kilogram on the 12 occasionscovered by representative charge. The Judge treated that finding as a conservative onegiven the evidence of some dealings in larger amounts.65[74] We agree essentially for the reasons given by the Judge. Mr McMillan was awholesale dealer, the evidence at his trial establishing that he did not deal in quantitiesless than ounces. The payment by Mr Taui that was intercepted of between $22,000and $27,000 reflected a scale of dealing in ounces. Each of the intercepted packagestotalled weights consistent with dealings in ounces.Role[75] The Judge found that Mr Taui played a significant role in terms of thecharacteristics of different categories of role as outlined in Zhang. She recognised thatMr Taui displayed some features of a leading role, namely the commercial scale of hispurchases and the expectation of significant financial gain. The absence ofinvolvement in other parts of Mr McMillan's larger operation reduced the importanceof his role.66[76] This categorisation was challenged on appeal. Ms Cooper submitted thatMr Taui had only a lesser role or one on the cusp of lesser and significant roles asdefined in Zhang. She submitted that he was not found with any methamphetaminewhen arrested, with only $5,000 in cash, and apart from four ageing motor vehicles,was without any substantial assets. The paraphernalia of scales and packaging foundwhen he was arrested were consistent with an addicted user. There was no evidence65 Taui disputed facts hearing, above n 55, at [46].66 Taui sentencing notes, above n 2, at [27].of his on-sale to other users so, on Ms Cooper's analysis, he should be seen as a courierin the role of an employee and associate of Mr McMillan.[77] These arguments could have been made with more force if Ms Cooper hadmade out her prior submission that the quantity of methamphetamine attributed toMr Taui had been overstated. Had the quantity been substantially smaller, then hisinvolvement may have been consistent with frequent use and modest sales. However,submissions for Mr Taui did accept that he had been dealing on a commercial scale.The Judge's findings on quantities involved in Mr Taui's dealing, with which we agree,puts the scale of it well beyond minor street level dealing to sustain an addiction. Theabsence of evidence of Mr Taui handing methamphetamine over to customers is notsufficient to rebut the strong inference that it was occurring.[78] Similarly, absence of identified assets attributable to dealing profits does notcast doubt on the proposition that dealing on the scale involved would indeed haveproduced substantial profits. Mr Taui was on notice that the police were seeking himbefore his arrest so the extent of cash he was carrying should not be equated with caseswhere apprehension of dealers takes them by surprise.[79] Unlike Mr McMillan's other co-defendants, all of whom were subordinatesacting under his instructions, Mr Taui was relatively independent. Whilst he wasdependent on Mr McMillan for supply he was distinct from the rest of the activities,taking ounce quantities and turning them into cash. A payment between $22,000 and$27,000 is indicative of ounce dealings. Given the frequency and quantity of packageshandled, Mr Taui's position in the chain from manufacturer to consumer constitutes asignificant role in terms of the Zhang criteria.67The starting point[80] At sentencing the Crown invited comparison with a number of recentjudgments of this Court on sentences for methamphetamine dealers.68 Of those, theJudge considered the case of Wellington v R to be the most similar. That offender had67 Zhang v R, above n 21, at [126].68 Moheebi v R [2020] NZCA 343; Moses v R [2020] NZCA 296, [2020] 3 NZLR 583; Miller v R[2020] NZCA 131; Wellington v R [2020] NZCA 277; and Martin v R [2020] NZCA 318.run a distribution network in Christchurch, receiving large quantities ofmethamphetamine for on-supply. A starting point of 12 years' imprisonment wasupheld by this Court and the Judge adopted that for Mr Taui. 69[81] Mr Taui has appealed against the starting point on the grounds that the Judgehad attributed possession for supply of a quantity that was not made out and hadoverstated Mr Taui's role in Mr McMillan's methamphetamine dealing operations. Wehave rejected those two arguments.[82] In addition, Ms Cooper submitted that there was a lack of parity withco-offenders, five of whom were attributed starting points between three and six years'imprisonment for their parts in dealing in larger quantities (between two and sixkilograms of methamphetamine).70 It was submitted that Mr Taui's role was in manyways indistinguishable from those co-defendants.[83] There were material differences between the roles played by Mr Taui andMr McMillan's other co-defendants. The evidence at the latter's trial suggested thathe had varying levels of trust in some of those co-defendants, leading to their doinghis bidding more loosely supervised. In particular Mr Philip and Ms Hayman madenumerous trips to Auckland in vehicles supplied by Mr McMillan with secretcompartments, to swap large sums of money for large quantities of methamphetamine.Messrs Stone and Paulo were drivers and ran errands for Mr McMillan. None of themhad an independent role in taking ounce quantities of methamphetamine out ofMr McMillan's control and turning it into cash.[84] We acknowledge a potentially concerning gap between the 12-year startingpoint for Mr Taui and six years for Mr Philip. The Crown's appeal against Mr Philip'ssentence is addressed below. As noted above at [33]–[34] an overly lenient sentencefor one co-defendant does not necessarily afford a ground for revisiting another co-defendant's sentence that is otherwise within range — the threshold for interventionis a high one requiring the disparity to be present to such an extent that a reasonably69 Taui sentencing notes, above n 2, at [30]–[31].70 See summary of starting points at [34] above.minded observer would be led to believe that something had gone wrong with theadministration of justice.[85] We are satisfied that the relativity of the starting points adopted does not giverise to a concern that something significant has gone wrong in the sentencing process.We do not accept that an error can be made out on the ground that Mr Taui's sentencelacks parity or proportionality with those imposed on co-defendants.Uplifts[86] The Judge imposed an uplift of six months for the firearm and ammunitionconvictions. No issue was taken with that on behalf of Mr Taui. The Crown submittedthat it was line with similar cases attracting uplifts of 12 to 18 months.71 In the eventthat the end sentence was of concern, the Crown submitted that a margin should beallowed for leniency on the modest extent of this uplift.[87] The Judge also imposed an uplift of one year for Mr Taui's extensive previousconvictions. The one-year uplift amounted to eight per cent of the sentence on thatpoint. Mr Taui does not take issue with an eight per cent uplift submitting that thesame percentage should apply to the substantially lower starting point contended foron appeal.Mitigating factors[88] Mr Taui pleaded guilty shortly before trial. The Judge allowed a 15 per centdiscount for the guilty pleas which amounted to one year, and 11 months.72 No issuewas taken about the extent of that discount.[89] As to Mr Taui's personal circumstances, at sentencing the Judge had aPAC report that recorded an unfortunate and difficult upbringing, a pattern ofoffending influenced by addiction and a moderately positive projection of hisrehabilitative prospects notwithstanding an assessment that he was at a high risk of71 See To'a v R [2020] NZCA 187 at [19]; Joyce v R [2020] NZCA 124 at [24]; and Mills v R [2016]NZCA 245 at [18].72 Taui sentencing notes, above n 2, at [44].reoffending. The Judge also had a detailed report prepared under s 27 of theSentencing Act. The Judge fairly summed up the materials in the following terms:73 you have been dependent on drugs for most of your adult life, following adifficult upbringing. The intergenerational history of both social andeconomic deprivation diminished your opportunities and shaped the choicesyou made.[90] Mr Taui's sister characterised him in an interview for the purposes of as 27 report as institutionalised and Ms Cooper's summation was that his moralculpability was lower because he was a slave to methamphetamine.[91] The Judge acknowledged a link between Mr Taui's background and addictionissues, and the present offending. On the basis of letters from him and his sister, theJudge expressed hope for a change of attitude and positive rehabilitation. The Judgeallowed a global discount of 20 per cent for Mr Taui's personal mitigatingcircumstances.74[92] Ms Cooper challenged this as inadequate given the extent of Mr Taui's personalmitigating circumstances and a lack of parity with 30 per cent discounts allowed forco-defendants where their circumstances were arguably similar.[93] The Crown opposed any greater discount, treating 20 per cent as generous. Asa sentencing prospect, Mr Taui had had bail revoked, some doubt was cast on the pro-social values of a course he claimed credit for and the offending had occurred whilehe was on parole.[94] Assessments of discounts for personal circumstances are idiosyncratic,focusing individually on all the circumstances of every offender who offers suchmatters in mitigation. All of a range of matters are to be weighed against thecircumstances of the individual's offending. Attempting relativity with discountsafforded to co-offenders in this case is not of assistance in arriving at the appropriatediscount. There was a greater degree of commerciality in Mr Taui's offending and the73 At [45].74 At [47]–[49].more that feature is present, the less deprivation and adverse upbringing can beweighed in favour of a discount for personal circumstances.75[95] The extent of discount given was well within the range that was available tothe Judge. We would not be minded to vary that component to the sentencing analysis.Was the sentence manifestly excessive?[96] Addressing each criticism of the sentencing individually does not alter theultimate question, namely whether the end sentence was manifestly excessive. We aresatisfied that it was not. Mr Taui had a measure of autonomy and independence withina commercial methamphetamine dealing operation of some scale and sophistication.He was responsible for the sale of a quantity which was within band 4 of Zhang.76 Hepresented as a dealer with a number of previous serious drug convictions. Theoutcome was consistent with other sentences approved by this Court.77Result[97] The application for an extension of time to appeal is granted.[98] Mr Taui's appeal against sentence is dismissed.R v PHILIP CA604/2021Introduction[99] The Crown has appealed the sentence of one year's home detention imposedon Mr Philip as being manifestly inadequate.[100] Mr Philip was charged with undertaking five trips to carry a quantity of at leastsix kilograms of methamphetamine from Auckland to Wellington for Mr McMillan.On a number of occasions he also carried significant amounts of cash to75 Zhang v R, above n 21, at [130]–[136]; citing R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at[12]–[15].76 Zhang v R, above n 21, at [125].77 Smith v R [2020] NZCA 221 at [21]; Hall v R [2020] NZCA 183 at [39]; and Wellington v R, aboven 68.Mr McMillan's Auckland supplier, Mr James, to pay for methamphetamine supplied.Mr Philip was accompanied every time by his partner Ms Hayman and on two trips byMr Minns who took part at their instigation.[101] Mr Philip was charged with five counts of possession of methamphetamine forsupply78 as well as two charges of possession of cannabis.79[102] Mr Philip sought and was given a sentence indication on 1 February 2021 onthe basis of an agreed statement of facts and submissions from counsel.80 In hersentencing indication Gwyn J indicated the starting point of eight years' imprisonmentwould be adopted and that his maximum end sentence would be six years and twomonths' imprisonment. The Judge identified a possibility of further discounts ifadditional information about his personal circumstances warranted that.[103] Mr Philip pleaded guilty one week after receiving the sentence indication andone day before his trial was scheduled to begin in the High Court at Wellington.81[104] Mr Philip's sentencing was delayed, at least in part to allow him to undertakea rehabilitative course at Kahukura whilst on electronically monitored bail (EM bail).By the time he was sentenced on 13 September 202182 the Judge had presided overMr McMillan's five-week trial and had indicated to counsel the prospect that furtherinformation available since providing the sentence indication could warrant areconsideration of the sentence.83[105] At sentencing the Judge held that new information justified a recharacterisationof Mr Philip's offending. She downgraded its relative seriousness so that the startingpoint adopted was the same as that used for Ms Hayman who by then had beensentenced.84 In addition, personal circumstances entitled Mr Philip to greater78 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a); and Crimes Act 1961, s 66.79 Misuse of Drugs Act 1975, s 7(1)(a) and (2).80 R v Philip [2021] NZHC 42 [Philip sentence indication].81 The timing of his pleas was complicated by the transfer to Wellington of some charges that hadbeen scheduled for a much later trial date in the Auckland District Court and the complexity of thematerial he had to consider.82 Philip sentencing notes, above n 3.83 See [126]–[131] below on the sequence of minutes and memoranda foreshadowing thatconclusion.84 Philip sentencing notes, above n 3, at [42]–[44].discounts than had been contemplated earlier.85 The Judge reduced the starting pointfrom eight to six years' imprisonment and allowed a total of some 67 per cent ofdiscounts to arrive at a sentence of two years' imprisonment that was then transformedinto a sentence of one year's home detention.86[106] The Solicitor-General has appealed the sentence under s 246 of the CriminalProcedure Act 2011 (the CPA) on the basis that it was manifestly inadequate andwrong in principle. The grounds advanced were that the Judge erred in varying thefactual basis on which the offending was assessed from the description of it in theagreed statement of facts. Arguably the Judge ought not to have relied on a differentperception of the offending by relying on the evidence at Mr McMillan's trial. Thatcontributed to a starting point that was manifestly too low and out of line with appellateauthority. The inadequacy in the sentence was arguably exacerbated by over-generousdiscounts.Altering the factual basis for the starting point[107] At the sentence indication hearing the Crown contended for a starting point of14 years' imprisonment and Mr Paino, on behalf of Mr Philip, contended for a startingpoint of nine years.87 Mr Paino conceded that Mr Philip's role was greater than thatof Ms Hayman and that the offending came at the lower end of "significant" in termsof the categories of role described in Zhang.88[108] In the sentence indication decision the Judge was mindful of the need toconsider parity with Ms Hayman who had by then accepted a sentence indication onthe basis of a starting point of six years' imprisonment. The Judge observed both thatshe could not determine either to be the leader between them89 and that givenMs Hayman's somewhat different circumstances, Mr Philip may have taken a moreleading role.90 The Judge saw Ms Hayman as motivated by her addiction, whereasMr Philip was not. He was significantly older than she was and was a patched gang85 At [2]–[3] and [55]–[58].86 At [66]–[71].87 Philip sentence indication, above n 80, at [8]–[9].88 At [19].89 At [21].90 At [23].member.91 These differences were relied on to set a two-year higher starting point ofeight years.92[109] At sentencing, the Judge drew on evidence at Mr McMillan's trial on theinvolvement of his co-offenders including Mr Philip and Ms Hayman. On the basisof that evidence and other material not available at the sentence indication the Judgefound that Mr Philip:93(a) performed a limited function under direction;(b) was motivated primarily by his addiction;(c) received limited or no financial gain;(d) was paid in drugs to feed his addiction or cash significantlydisproportionate to the quantity of drugs or risk that had been involved;and(e) had no influence over those above him in the chain.[110] Against those factors the Judge found that Mr Philip had not played asignificant role in Mr McMillan's operation, citing the Crown's submission in closingto the jury in the McMillan trial that Mr Philip was "a mule and hired muscle". Inaddition the Judge held that Mr Philip's gang connections were largely irrelevant tothe offending and that none of his prior convictions were for supplyingmethamphetamine.94 The Judge concluded that neither Mr Philip or Ms Hayman wasthe leader as between the two of them and that they had not accumulated money orassets as a result of their offending.95[111] On these grounds the Judge found that, instead of a starting point two yearslonger that had been adopted in the sentencing indication, Mr Philip should be given91 At [22].92 At [23].93 Philip sentencing notes, above n 3, at [37].94 At [35].95 At [36].the same starting point that had been used for Ms Hayman, namely six years'imprisonment.[112] The first ground of the Solicitor-General's appeal was that it was not open tothe Judge to alter the factual basis for sentencing from the facts that had been agreedbetween the Crown and the defendant for the purposes of a sentence indication thathad been accepted. Proof of the facts to be applied in sentencing is addressed in s 24 ofthe Sentencing Act in the following terms:24 Proof of facts(1) In determining a sentence or other disposition of the case, a court—(a) may accept as proved any fact that was disclosed by evidenceat the trial and any facts agreed on by the prosecutor and theoffender; and(b) must accept as proved all facts, express or implied, that areessential to a plea of guilty or a finding of guilt.(2) If a fact that is relevant to the determination of a sentence or otherdisposition of the case is asserted by one party and disputed by theother,—(a) the court must indicate to the parties the weight that it wouldbe likely to attach to the disputed fact if it were found to exist,and its significance to the sentence or other disposition of thecase:(b) if a party wishes the court to rely on that fact, the parties mayadduce evidence as to its existence unless the court is satisfiedthat sufficient evidence was adduced at the trial:(c) the prosecutor must prove beyond a reasonable doubt theexistence of any disputed aggravating fact, and must negatebeyond a reasonable doubt any disputed mitigating fact raisedby the defence (other than a mitigating fact referred to inparagraph (d)) that is not wholly implausible or manifestlyfalse:(d) the offender must prove on the balance of probabilities theexistence of any disputed mitigating fact that is not related tothe nature of the offence or to the offender's part in theoffence:(e) either party may cross-examine any witness called by theother party.(3) For the purposes of this section,—aggravating fact means any fact that—(a) the prosecutor asserts as a fact that justifies a greater penaltyor other outcome than might otherwise be appropriate for theoffence; and(b) the court accepts is a fact that may, if established, have thateffect on the sentence or other disposition of the casemitigating fact means any fact that—(a) the offender asserts as a fact that justifies a lesser penalty orother outcome than might otherwise be appropriate for theoffence; and(b) the court accepts is a fact that may, if established, have thateffect on the sentence or other disposition of the case.[113] The Crown position is that this section precludes the prospect of a judge relyingon materially different facts from those agreed for inclusion in a summary of facts thathas been relied upon in a sentencing indication that is subsequently accepted.[114] Mr Burston, for the Crown, submitted that this procedural error led the Judgeto make a substantive error in adopting a starting point that was lower than wasavailable. Arguably, the only inferences available from the agreed summary of factsrequired the Judge to attribute to Mr Philip a more important role in themethamphetamine dealing than the lesser role classified by the Judge, inconsistentlywith the classification of the offending in the sentencing indication.[115] In opposing the appeal, Mr Paino submitted that it was open to the Judge toupdate and, where justified, vary the Judge's assessment of the facts where she hadfurther information available that warranted doing so. Mr Paino submitted that itwould be unjust if the sentencing process did not allow for that in cases where it arosebecause otherwise it would force a judge to sentence on a factual basis that the judgefound to be incorrect. Mr Paino submitted that s 116 of the CPA allowed new factualinformation to be taken into account after a sentence indication had been accepted ifthe circumstances in s 116(2) arise. That section provides, as relevant:116 Effect of sentence indication(2) The sentence indication is binding on the judicial officer that gave itunless—(a) information becomes available to the court after the sentenceindication was given but before sentencing; and(b) the judicial officer is satisfied that the information materiallyaffects the basis on which it was given.[116] The content of summaries of fact is routinely negotiated between prosecutorsand defence counsel. Prosecutors may be prepared to omit aggravating circumstanceswhere evidence of them could reasonably be challenged at trial. Defendants may agreeto the inclusion of facts that would otherwise be disputed at trial in return, for example,for agreement that other charges would be withdrawn. Where a summary of facts isagreed for the purposes of seeking a sentence indication, neither party is bound to itscontent if the sentence indication is not subsequently accepted. If however a sentenceindication is accepted then the summary of facts constitutes the description ofoffending on which the defendant has pleaded guilty. Except in circumstancescontemplated by s 116(2), the judicial officer is bound to the assessment of thosecircumstances in her or his sentence indication when the sentencing ensues.[117] Mr Burston relied on this Court's decision in R v R to support his submissionthat the Judge could not revisit facts material to the relative seriousness of theoffending inconsistently with the agreed summary of facts.96[118] The appeal in R v R arose out of a sentencing of one of five co-defendants forhome invasion. R had pleaded guilty on the morning of her trial on the basis of asummary of facts that applied to her and three of her co-defendants. The fifthdefendant (P) went to trial and was convicted. At R's sentencing the Judge who hadpresided at P's trial noted that the evidence that had emerged at P's trial indicated thatthe activities of R were far more serious than had been set out in the agreed summaryof facts. Nonetheless, the Judge expressly recorded that he put those matters to oneside and proceeded to sentence R on the basis of the agreed summary of facts.96 R (CA628/2018) v R [2019] NZCA 135 at [33].[119] In pursuing a sentence appeal, R sought to rely on evidence from P's trial toput her involvement in a different light. This Court observed:[33] R is not entitled to undermine the summary of facts in this way. Wherecounsel have reached agreement regarding the factual summary on which aguilty plea is to be entered, sentencing should proceed on the basis of thatsummary. Any appeal against sentence must similarly be decided havingregard to the facts contained in the summary.[34] We also note the following:(a) R could have sought a disputed facts hearing under s 24 of theSentencing Act if she disagreed with aspects of herinvolvement as recorded in the summary of facts. She did notdo so.(b) The evidence adduced in P's trial is unlikely to have given anaccurate picture of R's role. The Crown was not required inthe course of P's trial to adduce evidence to prove its caseagainst R. What emerged regarding R is likely to have beena partial picture only, tailored to suit P's circumstances.(c) The inability to depart from an agreed summary of facts atsentencing and on appeal, has advantages for offenders aswell as for the Crown. It precludes the Crown inviting theCourt to increase the sentence based on evidence that emergeslater.[35] In our judgment, R cannot have recourse to the notes of evidence fromP's trial either to undermine the summary of facts she accepted when sheentered her pleas or to bolster her proposed appeal against sentence. Theappeal has to be decided having regard to the summary of facts which sheaccepted at the time.[36] Here the Judge did depart from the agreed summary of facts in threerespects:(a) he observed in his sentencing notes that R was not involvedin the initial discussions;(b) he recorded that it was B who took the victim to the ATMmachine and forced her to withdraw money; and(c) he noted that the victim was subject to further humiliation byway of having to strip, squat down and cough, and hecommented that "[t]hose sorts of things are absent from thesummary of facts ".Each of these observations was in R's favour and served to reduce herculpability. Had the Judge sentenced R by reference to other factors notrecorded in the agreed summary of facts, which increased her culpability, thenshe could properly have been heard to complain, but that is not the case.(Footnotes omitted).[120] In R v R no sentence indication had been given so the limited opportunity torevisit relevant information that is provided by s 116(2) did not apply. R v R is anexample of both sides being held to the description of the offending in the summaryof facts so that it was not open to R to seek to resile from the commitment made inpleading guilty on the terms of that agreed summary, when the sentence was appealed.[121] However, the terms of s 116(2) free the sentencing judge from that constraintin certain circumstances. If the judge is acquainted with fresh information that comeswithin s 116(2), then subject to following an adequate process that is fair to both sides,a sentence may be imposed that is inconsistent with the sentence indication.[122] In cases where a judge is minded to increase a sentence in reliance on furtherinformation becoming available since giving a sentence indication that has beenaccepted, there is clearly an obligation to give adequate opportunity to counsel toconsider the issue, and the defendant has to be given an opportunity to withdraw theguilty pleas.97 That obligation arises even if the end sentence is not increased, but thejudge proposes to alter the way the sentence is constructed.98[123] Considerable care is obviously required if a judge is minded to depart from thefacts both parties have formally committed to for reasons including those in paragraph[34](a) and (b) of R v R quoted at [119] above. As with the situation contemplated in[34](b) of that judgment, here the Crown had no concern to establish the extent ofMr Philip's involvement at Mr McMillan's trial. The tangential interest in hisoffending was to rebut Mr McMillan's attempts to downplay the extent of his owninvolvement by attempting to maximise the parts played by his co-defendants,including Mr Philip. That is not necessarily a reliable lens through which to recast theagreed facts on which Mr Philip's sentence indication had previously been given. Itis likely to be relatively unusual, if not exceptional, for the trial of a co-defendant tobe a reliable source of further information coming within s 116(2).[124] In response to questions, Mr Burston submitted in general terms that theevidence would have been different had Mr Philip gone to trial. Subsequent to the97 Herlund v R [2021] NZCA 71 at [37].98 Williams v R [2021] NZCA 54, (2021) 29 CRNZ 783 at [15]–[17].hearing he filed a memorandum providing different witness lists prepared first, whilstMr Philip remained a defendant and secondly, after entry of his guilty pleas. We acceptthat there would have been differences in the evidence, but it is neither possible nornecessary to make a determination of their extent.[125] However, as a matter of procedure, s 116(2) of the CPA recognises the prospectof a judge taking further information into account in the circumstances that arose here.Accordingly, the Crown's first ground of appeal that the Judge committed proceduralerror by assuming the power to do so cannot be made out.[126] An issue does arise as to whether the Judge gave adequate notice to the partiesof the prospect of changing the factual basis for sentencing, and whether an adequateopportunity was afforded to both parties to dissuade or encourage her from doing so.If the Judge's intention was to rely on more aggravating factors, then the defendanthas to be afforded an opportunity to vacate the guilty pleas. Where the oppositeprospect arises and the judge proposes to treat the facts as less serious than whenassessed for the sentence indication, the prosecution must be given an adequateopportunity to refute the grounds for such a change. That opportunity should reflectthe onus on the prosecution to prove facts under s 24 of the Sentencing Act. In somecircumstances it will be sufficient for counsel to be given the opportunity to makesubmissions on relevant factual matters. In others, the Crown could seek a disputedfacts hearing. The judge would need to indicate the likely change in facts and theweight likely to be attached to it, as provided in s 24(2)(a) of the Sentencing Act.[127] The adequacy of the opportunity given to the Crown to address a change to thematerial facts was raised during oral argument and we gave leave for Mr Burston tofile a memorandum attaching the relevant sequence of minutes and memoranda thataddressed the point.[128] The process was somewhat protracted. A minute issued by the Judge on19 March 2021 raised the prospect that a change in the facts relating to aco-defendant's offending might impact on the facts material to the offending by othersof the co-defendants.99 The Crown responded to that minute in a memorandum of99 R v Stone HC Wellington CRI-2019-085-1094, 19 March 2021.23 March 2021 submitting that there was no basis for a change to the starting pointnominated at the sentence indication for Mr Philip which was described as "alreadygenerous".[129] On 30 March 2021 the Judge issued a further minute stating that the Court andthe Crown now had a better understanding of the methamphetamine dealing operationwith more information being available. The minute required updated submissions tobe filed in light of a better understanding of the role of each of the parties as the casehad progressed.100[130] Further submissions on behalf of the Crown were filed in the High Court on9 April 2021 submitting that even if the Judge determined Mr Philip had a lesser rolein terms of the Zhang categories, the starting point could not go below the bottom ofband 5. Those submissions included a response to observations by the Judge aboutcomparison with the offending by Ms Hayman.[131] On 15 April 2021 the Judge issued a further minute seeking an indication of apotential home detention address for Mr Philip.101 The Crown's initial rejoinder wasthat home detention was not appropriate.[132] Further supplementary submissions were filed on behalf of the Crown on5 May 2021 addressing the mitigating circumstances that had been raised in thes 27 report filed on behalf of Mr Philip. The Crown opposed the submission that hadby then been made on behalf of Mr Philip that he ought to be given the same startingpoint as Ms Hayman of six years' imprisonment. Those Crown submissions reviewedthe aspects of Mr Philip's involvement that were treated as taking him beyond a lesserrole, emphasising that he was a trusted lieutenant of Mr McMillan and had directdealings with Mr James, the Auckland supplier. The point was also made that upliftsand discounts ought to be applied proportionately to the levels of seriousness of theoffending. They also made reference to the statutory presumption in favour ofimprisonment for such convictions.100 R v Philip HC Wellington CRI-2019-085-1094, 30 March 2021.101 R v Philip HC Wellington CRI-2019-085-1094, 15 April 2021.[133] Thereafter the sentencing was adjourned and on 8 September 2021 the Crownfiled a further memorandum casting doubt on the value of the Kahukura course thatMr Philip had undertaken. That memorandum pointed out that three instances ofcannabis consumption constituted a breach of the terms of Mr Philip's bail andsubmitted that a sentence short of imprisonment was not available.[134] Neither of the Judge's 30 March or 15 April 2021 minutes provided thespecificity that would be required under s 24(2)(a) of the Sentencing Act to give noticethat the Judge was minded to differ from the position in the agreed statement of facts,or the weight that the Court was likely to give such disputed facts. For instance, theJudge could have put counsel on notice that she now considered that Mr Philip had tobe treated the same as Ms Hayman, that his offending was to be seen as driven byaddiction, and that he was to be placed in the lesser category of those in Zhang. TheCrown could have inferred that some at least of these different views were motivatingthe Judge, but they could not be sure when drafting additional submissions.[135] We consider that, at least by analogy, the process required under s 24(2)(a)should have been adopted in the unusual circumstances that arose. We acknowledgethat at no point did the memoranda on behalf of the Crown raise that as an expectation,and nor are we aware of a precedent for doing so. It is necessary to retain fairness toboth sides in such exceptional circumstances. In general terms the Crown memorandareiterated that eight years' imprisonment should be seen as a generous starting pointand an end sentence of home detention was not available.[136] The Judge did proceed cautiously but we consider the opportunity afforded theCrown to contest the different view that the Judge sought to adopt of the facts maywell have been inadequate to provide the Crown a fair opportunity to contend for thesentencing analysis as agreed in the summary of facts relied on in the sentenceindication.Reconsideration of the sentence[137] Given that concern and our view that there do appear grounds for the Crownsubmission that the end sentence was manifestly inadequate, we have undertaken ourown sentencing analysis.[138] The quantity of methamphetamine in a commercial operation remains the firstdeterminant of an offender's sentence, it reflects both the social harm and the potentialillicit gains made from dealing in the drug.102 Quantity is also highly relevant toculpability and can also be indicative of commerciality which requires greaterdenunciation.103 Mr Philip's possession of an agreed amount of six kilograms put himwell into band 5 of Zhang which begins at two kilograms and which calls for a strongresponse in terms of deterrence, the promotion of accountability, and publicprotection.104 Given that quantity, any reduction below the bottom of the band at10 years would generally require involvement that falls in the lesser category.105 Theagreed summary of facts reflected participation at least on the cusp between lesser andsignificant categories of involvement. The Judge relied on the characterisation ofMr Philip in the Crown closing at Mr McMillan's trial as "a mule and hired muscle".106As Mr Burston has submitted, that was in the course of responding to Mr McMillan'sattempts to minimise his own involvement. Mr Burston submitted that if balancedregard was had to evidence at Mr McMillan's trial, then other evidence supported ahigher level of involvement by Mr Philip than in the lesser category.[139] These matters included that Mr Philip and Ms Hayman were involved in eightpurchases of methamphetamine from Mr James's Auckland premises rather than thefive that they were charged with. They had completed one transaction forMr McMillan whilst he was in South America and they were the only ones ofMr McMillan's associates to engage with Mr James. They were trusted to carrysubstantial amounts of cash to pay for methamphetamine.107 On one trip to Mr James'Auckland premises they acquired an Audi motor vehicle that was registered inMr Philip's name and which was inferentially paid for out of amounts earned fortransporting methamphetamine. Mr Philip and Ms Hayman arranged for theinvolvement of others as drivers, in particular Mr Minns, and Mr Philip involvedhimself in the consequences of the Nissan Tiida motor vehicle being impounded in102 Zhang v R, above n 21, at [103].103 At [104].104 At [125] and [133]–[134]; and Wan v R [2020] NZCA 328 at [18]. See also Sentencing Act 2002,s 7(1).105 Zhang v R, above n 21, at [123]; and Pratap v R [2021] NZCA 308 at [17].106 Philip sentencing notes, above n 3, at [35].107 A photograph in evidence showed the distinctive back of Mr Philip's mongrel mob patched jacket,alongside stacks of cash estimated at approximately $160,000.Taupō. At that time he confronted Mr James in what was observed to be anintimidating manner and then travelled to Taupō to participate in attempts to get thevehicle released.[140] These points tend to corroborate the nature of Mr Philip's involvement asportrayed in the summary of facts. They could not justify a categorisation any lowerthan the cusp between lesser and significant participation.[141] The summary of facts made little of Mr Philip's gang involvement so theJudge's observation from Mr McMillan's trial that his gang membership was notrelevant to his offending is not a post-sentence indication change.[142] The new factor was that reports subsequently provided, satisfied the Judge thatMr Philip's offending was driven by his addiction to methamphetamine. Given theother features of his offending, that could not justify a starting point 40 per cent lowerthan the bottom of band 5.[143] Mr Paino emphasised that neither he nor Mr Philip had any involvement in theMcMillan trial, so he was limited in the response he could make on what constituteda balanced summary of all the evidence at it. He focused on the importance of thechanges in Mr Philip's role, as perceived by the Judge at her own initiative. Mr Painodid not rely on other appeals in which a similar scale of offending produced six-yearstarting points. Rather, he emphasised the importance of parity with Ms Hayman.[144] Our view is that by giving credit for each of the factors relied on by the Judgeto characterise Mr Philip's involvement in the lesser category, and in particular theJudge's view of it being addiction-driven offending, it could not be put any less thanon the cusp between lesser and significant involvement. Another appeal where theoffending was put on that cusp is that of Faiyum.108 The appellant in that case pickedup packages of drugs on behalf of importers. He participated at the direction of others.A significant role included some awareness of the scale of the operation given thenumber of packages and other details apparent to him, indicating a level ofsophistication. However, Mr Faiyum had no influence on those above him in the chain108 Faiyum v R [2020] NZCA 523.and did participate subject to a degree of coercion. The quantity involved in hisoffending was 3.2 kilograms of methamphetamine and 535 grams of cocaine. ThisCourt characterised his role as somewhere between lesser and significant andapproved a starting point of 10 years.109[145] Taking all considerations into account, absent an accepted sentence indication,it would be difficult to justify a starting point lower than nine years' imprisonment.110[146] We do not consider that the argument about parity with Ms Hayman can availMr Philip. Mr Burston was unequivocal that the Crown considers Ms Hayman'ssentence was also manifestly inadequate, but the Crown has reasons for not pursuinga sentence appeal against her. Ms Hayman is the primary carer of two infants and hasno previous criminal convictions. This Court has on a number of occasions held thata gross and unjustifiable disparity does not necessarily result in a co-offender receivinga reduction in sentence. The Court applies the principle that no greater adjustment ismade than is required to protect the integrity of the criminal justice system.111 In thiscase upholding a manifestly inadequate sentence purely on the basis of parity woulddo more to diminish public confidence in the administration of justice.112 However,Mr Philip committed to guilty pleas, thereby relieving the Crown of the burden ofproving the charges against him, on the basis that the starting point would not be morethan eight years. Given that factor, and in the context of a Crown appeal, we set thestarting point at eight years' imprisonment.[147] The Crown also challenged the extent of discounts amounting to some67 per cent as overly generous. Mr Burston suggested they may have been tailored toenable the end sentence of home detention which he correctly submitted should notoccur where such a result could not otherwise be justified on the application of usualsentencing principles.113 The first discount was one of 20 per cent allowed for guiltypleas where they were entered one week before trial. There were complications in that109 At [4] and [22]–[23].110 See De Macedo v R [2020] NZCA 132 at [20]–[21]; Singh v R [2020] NZCA 211 at [20]; andFaiyum v R, above n 108, at [23].111 Mau'u v R [2011] NZCA 385 at [28], citing R v Ryder CA116/98, 23 June 1998 and R v ThompsonCA245/98, 22 December 1998.112 See Frank v R [2013] NZCA 447 at [39].113 See R v Kennedy [2011] NZCA 109 at [32].some charges had been transferred from a different trial in Auckland that was not dueto occur for a further year. Also there had been a change of counsel and progressiveprosecution disclosure. We would not interfere with the Judge's assessment of thatdiscount.[148] Mr Philip had the advantage of a thorough and supportive s 27 report thatdisclosed a traumatic childhood with intergenerational history of social and economicdeprivation leading to dependence on drugs for most of his adult life. The Judgeallowed a 30 per cent discount for these personal factors. This Court treats 30 per centas being at the upper end of discounts available for such personal factors, with15 per cent being a much more usual discount in cases where a causal link is made outbetween offending and seriously disadvantaged personal backgrounds.114[149] Notwithstanding the compelling case made out for a meaningful discount inthe s 27 report and other materials before the Court, it is inarguably generous.[150] The Judge had allowed Ms Hayman a 20 per cent discount for the impact hersentence would have on their infant son. There was evidence that both parents hadstrong bonds with their baby and that contributing fully to his care was a positivefeature in Mr Philip's conduct on bail. Although both parents have some support fromtheir families in the vicinity, importance was attached to the impact that sendingMr Philip to prison would have on the wellbeing of the child. The Judge allowed afurther 10 per cent discount to mitigate the impact of Mr Philip's sentencing on thechild.115[151] On appeal, Mr Paino filed a statement from the midwife caring for Ms Haymanwho confirms that she is expecting the couple's second child. Mr Paino sought toadmit that as fresh evidence in the event this Court undertook any reconsideration ofMr Philip's sentence. We have had regard to the fact that removing Mr Philip to prisonwould not only impact on their first child, but compound difficulties for Ms Haymanwith the birth of a second child.114 King v R [2020] NZCA 446 at [28]–[30], citing Solicitor-General v Heta [2018] NZHC 2453,[2019] 2 NZLR 241; Carr v R [2020] NZCA 357; Moses v R [2020] NZCA 296, [2020] 3 NZLR583; and Zhang v R, above n 21.115 Philip sentencing notes, above n 3, at [61].[152] Given the generous discount for Mr Philip's own personal background as amitigating factor, this additional discount of 10 per cent cannot be justified. Thecompassionate approach enabling both participants in the significant commercialmethamphetamine dealing to care for their infant children is admirable, but onlypossible here by granting unwarranted additional leniency to Mr Philip.[153] From the starting point of eight years, discounts of 50 per cent reduce it to asentence of four years' imprisonment. From that point Mr Philip is entitled to somediscount for the period of some 22 months that was spent on EM bail. The Judge wastroubled by breaches of bail conditions where Mr Philip had consumed cannabis andgave a six-month discount. We would not alter that assessment, resulting in an endsentence of three years and six months' imprisonment.[154] Mr Paino submitted that the Judge ought to have taken into account the periodof some six months during which Mr Philip was remanded in custody before beinggranted bail. That is not a consideration on resentencing as the period in custody onremand is taken into account in calculating a prisoner's entitlement to release.116[155] Mr Paino's parting shot was that on any reconsideration of the sentence, theCourt should recognise that incarcerating an offender who had adjusted to, and served,part of a non-custodial sentence was unduly harsh and inhumane. He submitted it wasespecially so for Mr Philip where he has pursued rehabilitative steps and continues toplay a major role in parenting an infant (soon to be two infants). Regrettably, the Courtcannot rely on that aspect to diverge from what is otherwise the appropriate responseto a successful challenge to a sentence found to be manifestly inadequate. This is nota case in which the appeal was pursued solely to avoid the creation of a wrongprecedent.117[156] Mr Philip would have been inducted into his present sentence of homedetention shortly after sentencing in mid-September 2021, meaning he would haveserved approximately seven months by the time this judgment is delivered. Credit iswarranted on a week for week basis for that portion of a sentence served so that in116 Sentencing Act 2002, s 82; and Parole Act 2002, s 90.117 R v Kennedy, above n 113, at [32]–[33].allowing the Crown appeal we quash the sentence of home detention and take timeserved on it into account in imposing instead a sentence of two years and11 months' imprisonment.Result[157] The Solicitor-General's appeal against sentence is allowed.[158] The sentence of one year's home detention is quashed and substituted with asentence of two years and 11 months' imprisonment.Order[159] The sentence of imprisonment is to take effect from 3:00 pm on Tuesday12 April 2022. The current sentence of home detention is to continue in effect untilthat time.[160] Mr Philip must surrender himself to the Prison Director at Manawatu Prison at3:00 pm on Tuesday 12 April 2022 to commence his sentence of imprisonment.Solicitors:Crown Solicitor, Wellington for Respondent in CA505/2021 and CA572/2021 and Appellant inCA604/2021Paino & Robinson, Upper Hutt for Respondent in CA604/2021