KIM v R [2023] NZCA 332

KIM v R [2023] NZCA 332 [31 July 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA260/2022[2023] NZCA 332BETWEEN PETER DONG HAE KIMAppellantAND THE KINGRespondentHearing: 13 June 2023Court: Courtney, Peters and Mander JJCounsel: P I Pati for AppellantS S McMullan and M J Mortimer-WangJudgment: 31 July 2023 at 10 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Peter Kim pleaded guilty to charges of possessing methamphetamine andMDMA for sale,1 and a further charge of possession of cocaine.2 On 6 May 2022Edwards J imposed a sentence of 10 years and 10 months' imprisonment with aminimum period imprisonment of four years and four months.3 Mr Kim appeals thelength of his sentence and the imposition of a minimum period of imprisonment.1 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a) — maximum penalty life imprisonment; ands 6(1)(f) and (2)(b) — maximum penalty 14 years' imprisonment.2 Section 7(1)(a) and (2)(a) — maximum penalty six months' imprisonment or a $1,000 fine.3 R v Kim [2022] NZHC 952 at [68]–[69] [Sentencing decision].The offending[2] Mr Kim's offending arose from his involvement in a large-scale drug syndicatethat imported and distributed methamphetamine, cocaine and MDMA. Hisparticipation in this offending was summarised by Edwards J when sentencingMr Kim:[5] Members of the syndicate had different roles. Some were referred toas "storage" or "storemen". They were engaged to stockpile and repackagedrugs. Others were referred to as "runners" or "drivers". They were primarilyresponsible for delivering drugs and collecting cash payments. It is commonground that you played a storeman role in the syndicate. Mr Valent[who orchestrated the drug syndicate] would communicate with those in hisdrug syndicate, using applications such as the voice over internet protocol app,Wickr.[6] The syndicate was in operation from August 2017 to February 2020.Your methamphetamine-related offending covers a period of approximately11 months, from late 2017 to September 2018.[7] In late 2017, Mr Valent arranged for the manufacture ofmethamphetamine at a remote location in Northland. During a two-monthperiod, six or seven manufactures were carried out with the totalmethamphetamine produced estimated to be at least 22 [kg]. You came intopossession of the methamphetamine from three of those manufactures.[8] Furthermore, at the end of December 2017, you received a packagecontaining approximately 10 [kg] of methamphetamine. You provided thispackage to Mr Hall and Ms Newton-Kearney for delivery to a customer inChristchurch. You received a large amount of cash and approximatelysix AR-16 assault rifles as payment for the methamphetamine on their return.The cash and firearms were held by you and later collected by another memberof the syndicate.[9] In July 2018, you received one kg of methamphetamine from Mr Hallfor onwards delivery to customers of Mr Valent.[10] The total weight of methamphetamine possessed for supply is notknown, but it is estimated to be at least 15 [kg] and that is the agreed quantityon which I am to sentence you today.[11] The possession of MDMA for sale arises out of events in 2018. InMarch of that year, you took possession of approximately two [kg] of MDMA,which was then provided to Mr Hall and Ms Newton-Kearney for delivery toa customer in Christchurch. The payment for that delivery was approximately$600,000 in cash, which you received from Mr Hall and Ms Newton-Kearneyon their return to Auckland, and which you held on behalf of Mr Valent.[12] In July 2018, you received one kg of MDMA from Mr Hall foronwards delivery to customers of Mr Valent.[13] Subsequently, in early September 2018, you received four [kg] ofMDMA from Mr Hall which you stored on behalf of the drug syndicate.[14] For the purposes of sentencing, it is agreed that the total MDMApossessed for supply is seven [kg].[15] Finally, in relation to the charge of possession of cocaine, you receivedtwo ounces of cocaine between September 2017 and 26 August 2019. Thecocaine was delivered to you by Mr Hall and Ms Newton-Kearney on theinstructions of Mr Valent. They uplifted $10,000 in cash from you as payment.[16] The Police terminated Operation Mystic on 5 February 2020. Youwere arrested together with others in the drug syndicate on that day. A searchof your home address found a money counting machine, scales and bagscontaining unknown residue.The sentence[3] By reference to the guideline judgment of this Court, Zhang v R,4 thesentencing of Mr Kim's co-offenders,5 and two other sentencing decisions,6 the Judgetook a starting point of 14 years' imprisonment for the methamphetamine offending.7An uplift of 18 months' imprisonment was applied for the MDMA charge andMr Kim's possession of cocaine.8 A 20 per cent discount was given for Mr Kim'sguilty pleas,9 and a further 10 per cent credit for remorse, prior good character andmatters relating to his rehabilitation.10 This led to the end sentence of 10 years and10 months' imprisonment.11 Because of the need for additional denouncement and todeter others who may engage in similar offending, Mr Kim was ordered to serve atleast 40 per cent of his sentence.12The appeal[4] Mr Kim brings his appeal on five grounds. He alleges:4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.5 R v Ramos [2020] NZHC 2257; R v Montgomery [2022] NZDC 4244; R v Edmands [2022] NZHC246; R v Mazuela [2021] NZHC 1606; R v Macalalad [2020] NZHC 2930; R v Maciel [2021]NZHC 836; and R v Hall and Newton [2020] NZDC 7291 — the adjusted starting point was 13years' imprisonment.6 R v Cutler [2019] NZHC 2737; and Chai v R [2020] NZCA 202.7 Sentencing decision, above n 3, at [20]–[35].8 At [39].9 At [59].10 At [56].11 At [60].12 At [66].(a) the level of his culpability arising from his role in the syndicate wasoverstated;(b) the starting point was manifestly excessive and did not accord withother sentences for similar offending;(c) the Court erred in failing to allow a discount for factors canvassed inthe s 27 cultural report;(d) the starting point and end sentence lacked parity with Mr Kim's co-offenders; and(e) the Court erred by imposing a minimum period of imprisonment basedon a need for additional denouncement and deterrence.[5] We address each of these grounds in turn.Mr Kim's role and level of culpability[6] The Judge assessed the sentence starting point by taking into account thequantity of methamphetamine involved in Mr Kim's offending.13 This has beenrecognised as a reasonable proxy for both the social harm done by the drug and theillicit gains made from trafficking it.14 The Judge also analysed the role Mr Kimplayed in the drug operation.15[7] As Mr Kim's offending related to an amount of methamphetamine exceedingtwo kg, the Judge accurately placed Mr Kim's offending in band five of the graduatedstarting points outlined in Zhang that attracts a starting point of between 10 years andlife imprisonment.16 The Judge characterised Mr Kim's role as "towards the lowerend of the significant category",17 the intermediate category falling between the"lesser" and "leading" roles for commercial methamphetamine offender profiled in13 At [20] citing Zhang v R, above n 4, at [125].14 Zhang v R, above n 4, at [10(b)].15 Sentencing decision, above n 3, at [22]–[29].16 Zhang v R, above n 4, at [125].17 Sentencing decision, above n 3, at [29].Zhang.18 The Judge's determination of Mr Kim's level of involvement was based onher assessment that he was primarily motivated by financial reward, had an"operational function within a chain", and some awareness of the scale of theoperation.19[8] Since Mr Kim's sentencing, the Supreme Court, in Berkland v R,20 has largelyconfirmed the approach taken by this Court in Zhang. However, there has been somefine tuning of the descriptions of the roles offenders may perform within a distributionnetwork, including, relevantly, that relating to the "significant" role, which theSupreme Court modified as follows:21(a) Operational and management functions are now distinct.Management functions will generally be at the upper end of thesignificant role, whereas operational functions will generally be at thelower end.(b) Commercial profit is no longer an indicator for the significant role andis replaced with financial reward.The argument[9] It was submitted by Mr Pati, on behalf of Mr Kim, that the Judge's conclusionthat Mr Kim was primarily motivated by financial reward was not an availableinference from the circumstances of his offending. It was acknowledged Mr Kim hadsome financial motivation but it was argued this was not the primary reason for hisparticipation, rather, greater weight should have been given to Mr Kim's cocaineaddiction when assessing his culpability. It was emphasised that the criterion for anoffender performing a significant role, described in both Zhang and Berkland,22 was aperson "motivated solely or primarily by financial or other advantage", and that, asobserved in Berkland, unlike Mr Kim, the taking of profit is often an indication ofseniority within an operation that attracts greater culpability.2318 Zhang v R, above n 4, at [126].19 Sentencing decision, above n 3, at [29]20 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.21 At [72].22 Berkland v R, above n 20, at [71]; and Zhang v R, above n 4, at [126].23 Berkland v R, above 20, at [70].[10] Mr Pati maintained his client's motivation involved a complicated mixture ofmisguided loyalty to members of the syndicate and his cocaine addiction. In regardsto the latter, Mr Pati was critical of the Judge having discounted the role Mr Kim'saddiction had played in his offending because it was based on "mere self-reporting",24yet had accepted that it had been his "gateway into [Mr Kim's] involvement with thesyndicate."25 It was emphasised the greater the addiction, the greater the financialexpense to support such a habit, and that cocaine was highly addictive.[11] In support of his submission, Mr Pati referred to a number of observationsmade by the Supreme Court in Berkland. First, that it should not be assumed thateffectively all methamphetamine addicts who offend on a commercial scale do so"in a clear-eyed and cynical way".26 Second, that while the stated preference in Zhangfor independent evidence to support claims of addiction is understandable and likelyto be more cogent than self-reporting,27 there was no reason to disqualify the latter asbeing incapable of proving this relevant fact. The Supreme Court described this as amatter for the assessment of the sentencing judge in the usual way.28[12] A recognised characteristic of those who may play a significant role in a drugsyndicate includes the performance of an operational function, whether operatingalone or with others.29 It was acknowledged that Mr Kim's involvement in thesyndicate exhibited elements of performing an "operational function". However, itwas argued his involvement was of a "quasi-operational" nature which better fellwithin the parameters of a person performing a "lesser role": a limited role underdirection. Mr Pati emphasised Mr Kim did not contribute any specialist expertise orknowledge and, as recognised by the sentencing Judge, took directions from others inthe syndicate.[13] It was also suggested Mr Kim was paid in drugs to feed his own addiction, orin amounts of cash significantly disproportionate to the quantity of the drugs withwhich he was involved or the risks associated with such quantities, and had no24 Sentencing decision, above n 3, at [49].25 At [27].26 Berkland v R, above n 20, at [128] citing Zhang v R, above n 4, at [148].27 At [129].28 At [129].29 At [71].influence on those who sat above him in the chain. Mr Pati's overall submission wasthat Mr Kim's role more accurately sat within the "lesser" category.Analysis[14] There can be no dispute that the amount of methamphetamine with whichMr Kim was involved over the 11 months he performed his role for the syndicateplaces him well within band five of the offending described in Zhang. Mr Pati soughtto make something of the sentencing Judge's description of the total weight ofmethamphetamine possessed for supply as being at least 15 kg, whereas the summaryof facts estimated the total weight to have been no more than 15 kg.[15] It was suggested the Judge may have been labouring under a misapprehensionthat the amount of methamphetamine in Mr Kim's possession was more than 15 kg.However, we consider the Judge's accurate recitation of the relevant facts, includingthe various amounts of methamphetamine involved in the described transactions leadsto the opposite conclusion. It is apparent from the approach taken by the Judge thatshe proceeded on the basis that Mr Kim's offending involved an amount ofmethamphetamine that could be proven as being in the region of 15 kg. The Judgeexpressly stated that was the agreed quantity on which he was to be sentenced. Thisis well within band five that applies to amounts greater than two kg. There is noindication the Judge inflated the starting point because of any false apprehensionMr Kim's offending involved an amount of methamphetamine in excess of thatdescribed in the summary of facts.[16] The nub of this ground of Mr Kim's appeal is that his involvement should havebeen categorised as falling within the profile of a person fulfilling a "lesser" ratherthan "significant" role in the offending. However, when assessed in accordance withthe further analysis undertaken in Berkland regarding the profile of offenders whohave carried out a "significant role", we do not consider the final placement of Mr Kimtowards the lower end of that category can be faulted.[17] The Judge described Mr Kim as having an "operational function within achain" where he did not exercise managerial functions.30 It was accepted he did nothave a large degree of autonomy, nor could he be described as a trusted lieutenant tothose sitting above him in the hierarchy. However, we agree with the Crown'ssubmission that other indicia supported the Judge's placement of Mr Kim at the lowerend of the significant category, rather than as an offender carrying out a lesser role.[18] Mr Kim was entrusted with large amounts of drugs and cash and, in carryingout his function as a "storeman" for the syndicate, demonstrated he was a trustedmember of the chain. He was responsible for collecting payments that included largeamounts of cash and firearms and passing them on to others. We reject the contentionthat Mr Kim would not have had an accurate understanding of the extent of theoperation of which he was a part, or would have garnered only limited knowledge ofits size. The amounts of cash and drugs he was handling and the frequency of hisinvolvement over a relatively long period, including the receipt of one payment of$600,000, not only speaks to the trust that was placed in him but also his insight intothe magnitude of the dealing enterprise in which he was participating.Decision[19] We think it clear that Mr Kim had become a valuable member of the syndicatewho could be relied upon to distribute large amounts of drugs to others and receiveequally large amounts of cash in his role as a "middleman" or "storeman". We arefortified in this view by the observations of the Supreme Court in Berkland v R.Mr Pati placed emphasis on the "operational function" Mr Kim carried out, which wascontrasted with those who had "management functions" that attracted a higher levelof culpability. We accept that is so, but Mr Kim's fulfilment of his operational functionalso qualifies him to be categorised as having discharged a significant role in the drugoperation, albeit at a lower end of the scale than would otherwise have been the casehad he been carrying out a management function in the chain of distribution. Thisaccords with the Supreme Court's analysis in Berkland:3130 Sentencing decision, above n 3, at [29].31 Berkland v R, above n 20, at [68]–[69].[68] Those at the upper end of the significant range can be expected tomanage aspects of the overall operation with at least some knowledge of howthe pieces fit together. They will direct and engage others in the course ofmanaging a significant aspect of the operation. Purely operational functionswill not usually place the offender at the upper end of significant unless theyexercise a high degree of autonomy in the performance of functions that aresignificant to the operation or there is some distinctive element of theoperational role justifying its placement at the upper end. In either capacity,those at the upper end will take payments, often comparatively largepayments, from the leaders in return.[69] Those falling within the middle and lower end of the significant rangeare unlikely to be exercising managerial functions or have real autonomy inthe performance of their functions.[20] Mr Kim falls within the description of those who fall within the middle to lowerend of the significant range because of their operational responsibilities, despite notexercising managerial functions.[21] Mr Kim received cash for his efforts on behalf of the syndicate. He was notpaid in drugs. While he had an addiction, it appears to have been limited to cocaine.Although Mr Kim may have needed money to support his habit, and we accept, as didthe sentencing Judge, that he did not appear to have an excessive or luxurious lifestyleas a result of trafficking drugs. We, like the Judge, do not consider he fits the profileof an addict whose involvement is directed to obtaining some of the product to feedhis own addiction. We accept his cash rewards were relatively modest in comparisonto the value of the drugs he was handling and the size of the overall operation.However, to be balanced against that is the period of time over which he continued todischarge his role and the fact his involvement remained ongoing up until the time ofhis apprehension.[22] Mr Pati, particularly in his oral submissions, impressed upon us Mr Kim'smisplaced loyalty to assist friends and associates, which he submitted may havepossibly been reinforced by what he described as "latent cultural norms and childhoodtrauma." Mr Kim was supported at the hearing of his appeal by a large group ofrelatives and friends of diverse cultures who viewed Mr Kim's offending as aberrant.We appreciate that Mr Kim's fulfilment of the operational role he played in the drugsyndicate may have included some element of misguided loyalty to individuals heviewed as his friends, but we do not consider that can realistically account for hispersistent offending, nor, given the role he was playing within the syndicate, materiallymitigate his involvement.Alleged manifestly excessive starting point[23] The sentencing Judge's analysis of the appropriate starting point included areview of a number of sentencing authorities. The first group of those authoritiesconcerned sentences imposed on co-offenders, some of whom played leading roles inthe syndicate and others whose offending was less serious.32 Reference was made tothe offending of Mr Hall and Ms Newton-Kearney with whom Mr Kim wasinvolved.33 They were sentenced on charges of possessing 1.5 kg ofmethamphetamine and two kg of MDMA for supply, and importing three kg ofMDMA.34 A starting point of 12 years' imprisonment was adopted for theirmethamphetamine offending.35 An adjusted starting point for all their offending wasset at 13 years' imprisonment. The Judge also referred to starting points of 13 anda half and 13 years imposed on co-offenders whose role was described as being on parto Mr Kim's but involved lesser quantities of methamphetamine (7.816 kg and7.096 kg respectively, compared to 15 kg) over a shorter period. Those aspects led theJudge to conclude Mr Kim's offending was more serious.36The argument[24] The submission made on behalf of Mr Kim, that his starting point wasexcessive, largely focussed on the adjusted starting point adopted by the SupremeCourt in Berkland.37 At the time of Mr Kim's sentencing, the Judge observed that thelesser importance of his role made his offending less grave than that of the appellantin Berkland and a number of other offenders where starting points ranging from 15 to16 years and six months' imprisonment had been applied.38 The subsequent appeal tothe Supreme Court in Berkland resulted in Mr Berkland's starting point for his32 R v Ramos, above n 5; R v Montgomery, above n 5; R v Edmands, above n 5; R v Mazuela,above n 5; R v Macalalad, above n 5; R v Maciel, above n 5; and R v Hall and Newton, above n 5.33 Sentencing decision, above n 3, at [30].34 R v Hall and Newton, above n 5.35 Above n 5.36 At [32] citing R v Macalalad, above n 5; and R v Maciel, above n 5.37 Berkland v R, above n 20; at [80].38 Sentencing decision, above n 3, at [33] citing Berkland v R, above n 20; Zhang v R, above n 4, at[246]–[264]; and Wan v R [2020] NZCA 328.methamphetamine offending being reduced to 13 and a half years' imprisonment, sixmonths less than Mr Kim. It followed, in Mr Pati's submission, that Mr Kim shouldhave received a lower starting point. However, care is needed when examining howMr Berkland's starting point came to be reduced by the Supreme Court.Analysis[25] We accept the sentencing Judge, when referencing Berkland, proceeded on thebasis that the appellant's offending was more serious because he sat higher up in thehierarchy. Mr Berkland was described as the "right-hand man" to the leader of thedrug operation.39 However, following the Supreme Court's reformulation of thesignificant role it was considered that his role was not appropriately classified as at theupper end of significant.40 The Court found, as was the case with Mr Kim, that he didnot exercise significant autonomy, had no decision-making authority and did notmanage others.41 The amount of methamphetamine with which Mr Berkland wasinvolved, "at least 15 kilograms", was similar to the amount Mr Kim was estimated ashaving handled.42[26] While Mr Berkland was described as being privy to some of the strategicdecision-making,43 he shared with Mr Kim an awareness of the scale of the businessand was motivated by financial gain. Unlike Mr Berkland, there was no basis uponwhich it could be inferred that Mr Kim had direct contact with the principal of the drugsyndicate. However, having regard to the reassessment by the Supreme Court of thenature of Mr Berkland's role and its recalibration of where that offender sat within the"significant" category, we do not consider it follows that the placement of Mr Kim'srole in the "significant" category was erroneous. Nor, moreover, that his offendingcannot be viewed as broadly comparable to Mr Berkland, albeit towards the lower endof the range.39 Berkland v R, above n 20, at [73].40 At [73]–[77].41 At [76].42 At [3].43 At [73].[27] Mr Pati also sought to place reliance on another decision of the Supreme Court,Philip v R, that applied a starting point of six years' imprisonment.44 We do notconsider the roles of those offenders, which were akin to those of Mr Hall andMs Newton-Kearney in the present case and involved a smaller amount ofmethamphetamine, are comparable to that performed by Mr Kim.[28] The other case upon which weight was sought to be placed was R v Lidder, asentencing decision of the High Court in which a starting point of 14 years andsix months was applied in relation to the importation of 14.87 kg ofmethamphetamine.45 This offending was described by the sentencing Judge as havingsome similarities with Mr Kim.46 Mr Lidder received an importation of 14.87 kg ofmethamphetamine, extracted it from its packaging and repackaged it for supply. Hisrole was categorised as being towards the upper end of the "lesser" category and astarting point of 14 and a half years' imprisonment was adopted.47 It was argued thatMr Lidder's offending involved a high degree of planning and that his operationalinvolvement in the distribution of the drug was greater compared with what wasdescribed as Mr Kim's more passive role.Decision[29] We accept there are aspects of the offending in Berkland and Lidder that couldarguably be considered more serious than Mr Kim's but we do not consider thedistinctions sought to be drawn result in any materially different degree of culpability.It is trite to observe that each case must be assessed on the basis of their individualcircumstances and that a combination of different factors will need to be taken intoaccount when assessing an appropriate starting point. This is reflected in theoverlapping starting points based on the graduated amounts of methamphetaminedescribed in the bands of offending set out in Zhang. Band three concerns offendinginvolving less than 500 g of methamphetamine that can attract starting points betweensix and 12 years. Band four involves amounts less than 2 kg, in respect of which termsof between eight to 16 years' imprisonment can be expected. As already noted,44 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.45 R v Lidder [2020] NZHC 1738.46 Sentencing decision, above n 3, at [34].47 R v Lidder, above n 45, at [21].band five can attract starting points between 10 years and life imprisonment foramounts greater than two kg. The roles of the individual offender are then required tobe factored into the assessment as to where the offender sits across the range of thevarious bands.[30] Ultimately, the appeal court must be satisfied the starting point adopted iswithin the acceptable range available to the sentencing judge in the exercise of theirdiscretion after applying the sentencing guidance provided by the applicable tariffjudgments. There is an obvious need for consistency in sentencing but, as alreadynoted, the particulars of each individual's offending will invariably differ and requireseparate evaluation in each case. Having reviewed the cases referred to us, we do notconsider the starting point adopted by the Judge for Mr Kim's methamphetamineoffending was excessive.Discount for s 27 cultural report factors[31] In Berkland, the Supreme Court concluded that background factors maymitigate a sentence where they can help to explain, in some rational way, why or howthe offender has come to offend and thus to have "contributed causatively" to thatoffending.48 The strength of the causative contribution will bear on the potency ofthose factors' mitigatory effect.49[32] When reviewing Mr Kim's background, the Judge noted he had opened aninternet café and also worked as a personal trainer at the time he became involved withthe drug syndicate.50 The Judge observed that one of Mr Kim's clients provided himwith cocaine, and it was through that person that he became involved in thecommercial drug operation. No doubt that was the basis for the Judge accepting thatMr Kim's involvement with cocaine may have acted as a gateway to his criminaloffending. The Judge also referred to a number of the matters set out in the s 27 reportregarding the early death of Mr Kim's mother and his father's strict discipline anddifficulties with alcohol.51 The Judge expressed doubts regarding the causal effect of48 Berkland v R, above n 20, at [16(c)] and [109]–[110].49 At [110].50 Sentencing decision, above n 3, at [46].51 At [47].Mr Kim's cocaine addiction because it was self-reported, but, in any event, was notsatisfied there was a necessary link between his addiction and the role Mr Kim playedin what was described as a sophisticated and highly commercialised operation.52Argument[33] Contrary to the findings of the sentencing Judge, it was submitted there was astrong connection between Mr Kim's offending and his personal circumstances, andthat his addiction contributed causatively to his involvement. Emphasis was placedon the Judge's finding that she was prepared to accept Mr Kim's addiction to cocaineas having acted as a gateway to his involvement with the syndicate, and observationsmade by the Supreme Court in Berkland that contributory addiction can help to explainwhy an offender was drawn into the commercial drug-dealing environment. Reliancewas also placed on Mr Kim's difficult childhood and confusion relating to his culturalidentity.Analysis[34] We accept the Supreme Court, in Berkland, cautioned against exclusionaryrules regarding the relevance of addiction to commercial drug offending and temperedany requirement for independent evidence in relation to claims of addiction.53 It wasacknowledged in that case the former type of evidence is likely to be more cogent, butthat should not disqualify the latter where it is capable of proving a mitigatory factorto the required standard.54 However, accepting on its face the information aboutMr Kim's addiction to cocaine, we do not consider his apparent introduction to thisdrug via a person with whom he later became involved in commercial drug-dealingdemonstrates how his addiction impaired his agency or choice to offend in any waythat diminishes his moral culpability.[35] Nor do we consider the hardships Mr Kim experienced that were identified inthe s 27 report to be linked with how he came to offend. It appears, at the time MrKim involved himself in this offending, he had enjoyed relative success in his personal52 At [50].53 Berkland v R, above n 20, at [128] and [129].54 At [129].and business life. He had established a legitimate business, was continuing with hiswork as a personal trainer, and had a wide body of friends and associates. While hisinvolvement with cocaine may have resulted in him developing associations withpeople connected with commercial drug-dealing, the information falls well short ofsuggesting he was compelled to do their bidding in order to feed his habit.Decision[36] We do not underestimate the insidious effects of drug addiction, andacknowledge Mr Kim's efforts to address his reliance upon cocaine. However, havingregard to the ongoing nature of his offending in what was a highly commercialoperation, and his otherwise unaffected ability to successfully function both personallyand in business, we do not consider the choices he made to offend were constrained toany material degree by factors outside his control. This extends to suggestions thatcultural factors and misguided loyalties influenced Mr Kim. Even if that was so, wedo not consider they have any material mitigatory effect given the nature and durationof his offending. We therefore do not consider the sentencing Judge erred in decliningto afford a discrete discount for matters relating to Mr Kim's addiction to cocaine orhardship arising from his upbringing.Parity with other offendersArgument[37] As a further ground of appeal, Mr Pati argued the end sentence imposed onMr Kim was disproportionate to that received by co-defendants whose offending, itwas submitted, was more serious. That description is undoubtedly true ofMessrs Ramos and Montgomery, both of whom had leading roles in the syndicate.55The sentencing Judge explicitly acknowledged that was the case.56 Mr Ramos wasdescribed as having been involved with 39.911 kg of methamphetamine, and as havingplayed the role of the primary storeman who organised and imported packagescontaining drugs.57 He had been in a position of leadership, directing and paying other55 R v Ramos, above n 5; and R v Montgomery, above n 5.56 Sentencing decision, above n 3, at [30].57 R v Ramos, above n 5, at [10] and [14].lesser offenders, and was described as essentially the main offender's lead man.58 Hisoffending attracted a starting point of life imprisonment that was reduced to a finalsentence of 12 years' imprisonment.59[38] Mr Montgomery was also described as a person who had a leadership rolewithin the syndicate and engaged in direct contact with the ringleader. He carried outdual roles as a storeman and runner, and recruited and directed others.Mr Montgomery was sentenced on the basis that he had a "leading role".60 TheDistrict Court adopted a starting point of 15 years and six months' imprisonment forhis offending that involved 10.396 kg of methamphetamine.61 To that a further twoand a half years was added for charges of importing methamphetamine and possessionof cocaine for supply, making a total starting point of 18 years' imprisonment,62 whichwas reduced to a final sentence of seven years and three months' imprisonment.63Analysis[39] We doubt a comparison between the respective starting points for Messrs Kimand Montgomery's offending gives rise to any disparity given the respectivecircumstances of their offending. However, insofar as this ground of Mr Kim's appealwas based on a submission that the end sentences imposed on Messrs Ramos andMontgomery gives rise to parity concerns, we consider such a submission is flawed.No meaningful comparisons can be made between the sentencing outcomes becauseof the distinct individual factors that apply to each offender. The circumstances of oneoffender can rarely be closely compared with those of another, even where they havebeen involved in similar offending.64 While it is desirable that persons who have beenparty to the commission of an offence should, all things being equal, receive the sameor similar sentence, rarely will that be the situation.[40] The sentencings of Messrs Ramos and Montgomery are cases in point. Thestarting point of life imprisonment taken for Mr Ramos was substantially reduced58 At [15].59 At [23] and [29].60 R v Montgomery, above n 5, at [14].61 At [17].62 At [18].63 At [22].64 R v Lawson [1982] 2 NZLR 219 (CA) at 223.because of the significant assistance he had provided to the Crown since his arrest.65This extended to providing details about the operation of the syndicate, his own roleand the role of various co-offenders. As noted by the sentencing Judge in that case,discounts of up to 60 per cent may be available when an offender has pleaded guiltyat the earliest opportunity and assisted the authorities.66 Mr Ramos was entitled to afull 25 per cent discount for his early guilty plea.67 Coupled with credit for hisprevious good character, of a type similarly afforded to Mr Kim, a total discount of60 per cent resulted in Mr Ramos' sentence being converted to a final term ofimprisonment of 12 years.68[41] The situation with Mr Montgomery is not dissimilar. He received the benefitof a "very early plea of guilty" for which he received a 25 per cent discount.69Moreover, there were matters of personal mitigation, including a lifelong braincondition, which resulted in him not being able to read or write, and other mentaldifficulties that impacted on his functioning that were held to have causativelycontributed to his offending.70 In total, he received a 60 per cent discount inclusive ofa 10 per cent credit,71 similar to that extended to Mr Kim for remorse and otherpersonal considerations.Decision[42] This brief review of the differing factors in play in respect of these twoco-offenders readily explains their respective sentencing outcomes. We do notconsider any question of disparity arises as a result of the sentences they received.65 R v Ramos, above n 5, at [27]..66 At [29] citing R v Hadfield CA337/06, 14 December 2006.67 At [28].68 At [29].69 R v Montgomery, above n 5, at [22].70 At [21].71 At [22].The imposition of a minimum period of imprisonmentArgument[43] Mr Kim's final ground of appeal was that the sentencing Judge erred inimposing a minimum period of imprisonment. In large part this submission was basedon an alleged failure to take into account Mr Kim's addiction and certainvulnerabilities said to be derived from factors outside his control that we have alreadyaddressed. It was argued these considerations militate against the need for deterrenceand denunciation. Reliance was also placed on observations of this Court that haveemphasised that minimum periods of imprisonment must not be imposed as a matterof routine or in a mechanistic way.72 A reasoned analysis is required justifying suchan order.73Analysis[44] The Judge's analysis of the question of a minimum period of imprisonmentresulted in her putting to one side any greater need for accountability, or anyrequirement for personal deterrence because of the remorse Mr Kim had expressedand his positive rehabilitative prospects. However, the Judge reasoned that, becauseof the "irreparable and incalculable misery" methamphetamine causes to thecommunity, Mr Kim's participation in a sophisticated drug syndicate that had operatedfrom overseas, and involved him handling large quantities of drugs, cash and firearmsfor financial reward, required additional denouncement and general deterrence.74 Forthat reason, the minimum period of 40 per cent was considered to be justified.75[45] We do not consider the sentencing Judge breached the requirement of reasonedanalysis in her approach to the imposition of a minimum period of imprisonment. Weaccept that personal factors which may reduce an offender's moral culpability and bearon their level of agency in having become involved in offending, may moderate theneed for a minimum period of imprisonment which may otherwise have been thoughtnecessary to adequately achieve the purposes of deterrence and denunciation.72 Zhang v R, above n 4, at [169].73 At [169].74 Sentencing decision, above n 3, at [64]–[66].75 At [66].However, as we have found, we do not consider the sentencing Judge erred in herconclusion that Mr Kim's ability to make rational choices about whether to involvehimself in the drug syndicate was qualified by his cocaine habit. It had no apparenteffect on his ability to function or to otherwise engage in his business and personalendeavours.Decision[46] Mr Pati sought to rely on the approach taken by a different Judge regardingone of Mr Kim's co-offenders where no minimum term was imposed.76 However, wedo not consider the comparison is helpful. Minimum periods of imprisonment wereimposed on five of Mr Kim's co-offenders, four of whom received minimum terms of40 per cent and a 50 per cent term. Whatever the approach taken in those cases, giventhe circumstances and scale of Mr Kim's offending to which the Judge had particularregard, we are unable to conclude either that her decision was not supported byappropriate analysis or was otherwise unavailable to her.Conclusion[47] Despite Mr Pati's exhaustive submissions in support of Mr Kim's appeal, wehave found ourselves unable to sustain the grounds of his appeal. It follows that wedo not consider the ultimate sentence imposed was manifestly excessive, nor that theimposition of a minimum period of imprisonment was not warranted.Result[48] The appeal is dismissed.Solicitors:Crown Solicitor | Te Tari Ture o te Karauna, Auckland for Respondent76 R v Lidder, above n 45.