MARK TUMU GLASSIE v R [2022] NZCA 556

MARK TUMU GLASSIE v R [2022] NZCA 556 [16 November 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA88/2022[2022] NZCA 556BETWEEN MARK TUMU GLASSIEAppellantAND THE KINGRespondentCA201/2022BETWEEN JAMES PATRICK DUFFAppellantAND THE KINGRespondentHearing: 28 September 2022Court: Miller, Brewer and Moore JJCounsel: M J Taylor-Cyphers and G D Burns for Appellant (CA88/2022)S L McColgan for Appellant (CA201/2022)A L McConachy for RespondentJudgment: 16 November 2022 at 2.00 pmJUDGMENT OF THE COURTA The appeal in CA201/2022 is allowed.B The sentence of 15 years' imprisonment is quashed and substituted with asentence of 14 years, two months' imprisonment.C The appeal in CA88/2022 is allowed.D The sentence of seven years' imprisonment is quashed and substituted witha sentence of six years, two months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] These appeals are brought against the sentences imposed on James Duff andMark Glassie for their roles in a substantial drug dealing operation. They wererespectively the President and Vice President of the Central Chapter of the RebelsOutlaw Motorcycle Gang at the time. Mr Duff was sentenced to 15 years'imprisonment,1 and Mr Glassie to seven years.2The offending[2] Operation Ulysses was an investigation into the supply of methamphetamineby the gang in the Bay of Plenty region. It ran from 3 July to 4 October 2019.The operation led to 100 charges being laid against 12 defendants.[3] The drug dealing charges against the two appellants related tomethamphetamine, cannabis, LSD and MDMA. A second group of charges involvedcrimes against the administration of justice, and a third involved crimes of violenceor, in Mr Duff's case, unlawful possession of a pistol and conspiracy to access acomputer system.[4] The two appellants were sentenced separately by Judge Hollister-Jones,Mr Duff on 24 March 2022 and Mr Glassie on 11 February 2022, but the summariesof fact which they accepted were relevantly identical. We deal with the two appealsin parallel for that reason and because the Judge's methodology and elements of hissentence calculations are in issue in both appeals for similar reasons.1 R v Duff [2022] NZDC 5098 [Sentencing notes of Mr Duff].2 R v Glassie [2022] NZDC 2232 [Sentencing notes of Mr Glassie].The appellants' rolesMr Duff[5] The quantity of drugs dealt could not be known, but it was common ground atsentencing that Mr Duff was involved in supplying approximately three kilograms ofmethamphetamine and 22 pounds of cannabis.3[6] It was also common ground that he had a leading role in the business.Judge Hollister-Jones considered his role to be essentially that of a "working CEO ofa medium-sized methamphetamine and other drug distribution business".4 The Judgeaccepted that as President, Mr Duff established and maintained the commercialpurpose of the operation, negotiated the purchase of bulk quantities ofmethamphetamine, and established supply networks. He was also involved inpersonally supplying his distributors with methamphetamine in ounce amounts, andhe led the enforcement side of the operation.5[7] With respect to the cannabis offending, Mr Duff was involved in the supply of22 pounds in Auckland in July 2019 and involved in arranging a major outdoorgrowing operation. On termination he was found to be in possession of 838 grams ofcannabis.[8] An aggravating feature of the offending was a manhunt that Mr Duff arrangedto track down a defaulting debtor, a Mr King, who had purchased one kilogram ofmethamphetamine from him but failed to pay. He directed the debtor's capture andengaged in a conspiracy to bring about a false arrest by having an associate lay acomplaint with the police. On another occasion he developed a plan for a non-patchedgang member to take responsibility for a drug deal that had gone wrong. He was alsofound to be in possession of a pistol.[9] Mr Duff faced the following charges:6Methamphetamine Charges3 Sentencing notes of Mr Duff, above n 1, at [17]–[18].4 At [58].5 At [56].6 We take this summary from the Crown submissions on appeal.a. Charge 1 - participation in an organised criminal group (drugs);b. Charges 6, 24, 26, 27, 28, 30, 37, 47, 51 - supplyingmethamphetamine;c. Charges 34, 50 – possession of methamphetamine for supply;d. Charge 59 – offer to supply methamphetamine;e. Charges 32, 54 – conspiracy to supply methamphetamine;Cannabis chargesf. Charges 15, 61 – possession of cannabis for supply;g. Charge 25 – cultivating cannabis;h. Charge 36 – supplied cannabis;i. Charge 56 – conspiracy to cultivate cannabis;LSD / MDMA chargesj. Charges 35, 38, 49, 58 – supplied LSD;k. Charge 40 – supplied MDMA;l. Charge 41 – conspiracy to supply MDMA;Crimes against the administration of justicem. Charge 12 – conspiracy to bring a false accusation;n. Charge 20 – conspiracy to pervert the course of justice;Violenceo. Charge 7 - participation in an organised criminal group (violence);Firearmsp. Charge 46 – unlawful possession of a pistol;Fraudq. Charge 39 – conspiracy to access computer system;Mr Glassie[10] As Vice-President Mr Glassie was delegated the role of coordinating logisticsand maintaining order within the chapter. The amount of methamphetamine that couldbe directly attributed to him was only 10 grams.7 The exact amount could not beknown due to the use of coded messaging.8 He took the 22 pounds of cannabis toAuckland for sale in July 2019, was also found in possession of 8.265 kilograms ofcannabis, supplied at least 93 tabs of LSD, and offered to supply at least 28 grams ofMDMA.[11] Mr Glassie also initiated the drug deal with Mr King and became responsiblefor the manhunt, including driving to other regions searching for Mr King andtargeting people close to him. He was responsible for formulating a plan to flushMr King out by persuading an associate to make a complaint of theft to the police.The associate was compensated in drugs or money for making the false complaint.Mr Glassie told his wife that he would kill Mr King when he found him.[12] Mr Glassie faced the following charges:9Methamphetamine chargesa. Charge 2 - participation in an organised criminal group (drugs);b. Charge[s] 63, 65, 66 - supplying methamphetamine;c. Charge 64 – offer to supply methamphetamine;Cannabis chargesd. Charge 16 – possession of cannabis for supply;LSD / MDMA chargese. Charge 67 – offer to supply LSD;f. Charge 69 – supply LSD;g. Charge[s] 62, 68 – offer to supply MDMA;Crimes against the administration of justiceh. Charge 13 – conspiracy to bring a false accusation;i. Charge 21 – conspiracy to pervert the course of justice;Violence7 Sentencing notes of Mr Glassie, above n 2, at [15].8 At [15].9 We also take this summary from the Crown submissions on appeal.j. Charge 8 - participation in an organised criminal group (violence).The sentence calculationsMr Duff[13] The Judge took the methamphetamine offending to be the lead offences andadopted a starting point of 17 years, reasoning that the offending was similar to thatupheld in Paora v R.10[14] The Judge accepted that the cannabis offending would justify a standalonestarting point of five to six years' imprisonment.11 Having regard to totality he upliftedthe starting point by two years, noting that Mr Duff's offending was more extensivethan that of Mr Glassie who had been given the same uplift.12 The administration ofjustice charges would justify a starting point of four to five years; the Judge added anuplift of two years.13 There was a further uplift of six months each for possession ofthe loaded pistol and the LSD/MDMA offending.14 There was no uplift for the fraudoffending or Mr Duff's history.15 The overall starting point was 22 years'imprisonment.16[15] Discounts were provided for the guilty plea (15 per cent),17 remorse (five percent),18 addiction in respect of recreational use of MDMA only (two months),19background and cultural factors (five per cent),20 and rehabilitation (five per cent).21The total discounts were 30 per cent and a further two months. The end sentence of15 years and three months was rounded down to 15 years.22 No MPI was imposed.10 Sentencing notes of Mr Duff, above n 1, at [54]–[60], referring to Paora v R [2021] NZCA 559.11 At [62], referring to R v Terewi [1999] 3 NZLR 62 (CA).12 At [62].13 At [68].14 At [63] and [69].15 At [70] and [72].16 At [71].17 At [74].18 At [75].19 At [79].20 At [83].21 At [84]22 At [85].[16] With respect to the guilty plea discount, the Judge stated that the firstunequivocal indication from defence counsel to the Crown that Mr Duff would pleadguilty was given in July 2021 and the pleas were entered in August, three monthsbefore trial. He accepted that counsel had been required to review voluminousdisclosure in a complex case and recognised that the plea did save costs of trial, butthe pleas were entered 22 months after charge and so he thought the maximumdiscount available was 15 per cent.23[17] The Judge rejected a submission that a greater discount ought to be providedfor methamphetamine addiction. The Crown opposed a discount, pointing out that thealleged addiction was based on self-report and there was evidence Mr Duff had saidhe did not smoke methamphetamine and had not used it for seven years. He observedthat the writer of the s 27 report, Shelley Turner, had diagnosed methamphetamineaddiction but was not qualified to do so and was not in a position to offer an opinionthat a methamphetamine addiction lay at the heart of this commercially-drivenoffending. Her opinion to that effect bordered on advocacy. He was prepared only toaccept that Mr Duff made regular recreational use of MDMA.24[18] The Judge accepted that the s 27 report detailed Mr Duff's early emotional andsocio-economic deprivation, which resulted in disconnection from the educationsystem, entry into State care in his early teens and early entry into the criminal justicesystem.25 However, the Court had little information about the last 20 to 30 years ofMr Duff's life. He is in a long-standing stable relationship and is the father of threeboys, he had stopped offending in his late 30s, and he appears to have joined the gangat around 40 years of age. It was difficult to see a connection between his undoubtedlyvery difficult childhood and this offending. The Judge accepted that the connectionbetween early deprivation and later offending need not be close, but Mr Duff's earlychildhood appeared to have been stable.26 The discount was given because ofMr Duff's disconnection from te ao Māori, lack of a positive cultural framework, anda very difficult childhood through into his teenage years.2723 At [73]–[74].24 At [78]–[79].25 At [80].26 At [81]–[82].27 At [83].[19] With respect to rehabilitation, the Judge was satisfied that Mr Duff had doneall he could to access rehabilitation. Numerous certificates had been provided.He accepted that Mr Duff was genuinely motivated to change and acknowledged thatthe sentence would have a harsh impact on his teenage sons.28Mr Glassie[20] The Judge divided the sentencing into two groups: first, the drug chargestogether with that of participating in an organised criminal group for the purpose ofdrug dealing; and second, the crimes against justice.29 In relation to themethamphetamine charges, which he treated collectively as the lead offence,he adopted a starting point of five and a half years' imprisonment.30 He accepted thequantity of methamphetamine was modest and there was an absence of physical itemsindicating commerciality, but Mr Glassie was a senior manager of the operation and awholesaler, and he supplied a gang member operating at a retail level.31 He notedMr Glassie's involvement in the transaction with Mr King, his role in the plan to sell22 pounds of cannabis in Auckland, and his lead role in the "damage control" side ofthe business.32 Responding to a submission that there was no evidence of financialgain, he observed that Mr Glassie had owned a Harley Davidson motorcycle.33Overall, Mr Glassie's role increased his starting point, which would otherwise bearound three years, by placing him in the mid-to-upper range of band two inZhang v R.34[21] The uplift for possession of cannabis for supply was two years, the Judgenoting that it was the most graphic example of Mr Glassie's direct involvement in thesupply of illegal drugs for the gang. It was a planned operation involving significantlogistics, it involved others and it required considerable determination. On astandalone basis it would attract a starting point of four to five years' imprisonment.35For the other drug charges, which involved direct supply to customers, the quantities28 At [84].29 Sentencing notes of Mr Glassie, above n 2, at [32].30 At [37].31 At [33].32 At [34].33 At [35].34 At [36], referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.35 At [38], referring to R v Terewi, above n 11.were reasonably significant but the uplift was limited to six months' imprisonment.36So the total starting point for the drugs and organised criminal gang charges waseight years' imprisonment.[22] Turning to the administration of justice charges, the Judge noted that theattempt to locate and kidnap Mr King was a serious operation and the attempt to havean underling take responsibility for a patched member's offence were also serious.A deterrent sentence was required. On a standalone basis these charges would warrantfour to five years as a starting point. The uplift was two years, resulting in an overallstarting point of 10 years' imprisonment.37[23] There were no personal aggravating factors,38 although the Judge had earliernoted that Mr Glassie held legitimate employment as a youth worker and caregiver fora trust working with at-risk youth, and he had taken one of these young persons on adrug trip to Auckland.39[24] The discounts given totalled 30 per cent, comprising seven and a half per centfor the guilty pleas, which were entered on the Thursday prior to trial;40 five per centfor remorse;41 seven and a half per cent for Mr Glassie's connection with illegal drugsover many years;42 and 10 per cent for efforts to rehabilitate and prospects ofrehabilitation.43[25] No specific discount was given for cultural and socio-economic deprivation.The Judge noted Mr Glassie was aged 43 when he got involved in this very seriousdrug offending. He had not been before the courts for 13 years and he was a familyman holding a responsible job that involved setting an example. It was not a case ofoffending by an impressionable young person who had a terrible background. His life36 At [39].37 At [42]–[43].38 At [44].39 At [4] and [8].40 At [46].41 At [47].42 At [52].43 At [54].otherwise did not point to impaired decision-making; he is a martial arts coach and atrusted youth mentor.44[26] Nor was the Judge prepared to give a separate discount for addiction. The onlyevidence of it came from Ms Turner, who did not appear to be qualified to make thediagnosis, and the offending was commercially driven. To the extent that Mr Glassiehad a background of drug issues, that was reflected in the discount of seven and a halfper cent.45[27] However, the Judge did note that Mr Glassie had undertaken a recoveryprogramme and was reported to have excellent prospects of rehabilitation, hence thediscount of 10 per cent.46 He declined a discount for time spent on EM bail, reasoningthat it had given Mr Glassie the opportunity to participate in rehabilitation for whichhe had been given credit.47The appeals[28] Both appellants challenged the starting points adopted by the Judge and hisapproach to uplifts, contending that the overall starting points sought should have beenlower. For Mr Duff, Mr McColgan, who appeared for him at sentencing, submittedthat an overall starting point of 20 years was appropriate. For Mr Glassie,Ms Taylor-Cyphers, who was briefed on appeal, submitted that the Judge's approachto starting points was unorthodox and the starting point for the lead methamphetamineoffending ought to have been much lower. She submitted that a global starting pointof about six years' imprisonment was appropriate.[29] Both also challenged some of the discounts. Mr McColgan took issue with theguilty plea discount, contending that it ought to have been 20 per cent, and submittedthat a greater discount ought to have been given for addiction, cultural issues andrehabilitation. Ms Taylor-Cyphers sought a discount of 15 per cent for personalfactors, including hardship and addiction, and she submitted that a discount of44 At [51]–[52].45 At [50] and [53].46 At [54].47 At [55].15 per cent ought to have been given for rehabilitative efforts having regard to thediscounts given to co-offenders who had made similarly commendable efforts.Finally, she submitted that an allowance ought to have been made for time spent onEM bail; the Judge was wrong to deny such a discount on the ground that Mr Glassiehad made use of EM bail to engage in rehabilitation.Starting points for the lead offending[30] The parties agree that it was appropriate to take the methamphetamineoffending as the lead offending.[31] Mr McColgan argued that the Judge's methodology artificially inflated thestarting point for the totality of the offending. It was overly mechanistic and led to afailure to assess the offending as a whole. He accepted that Mr Duff was at the apexof the operation and many of the leading role indicia were satisfied. But it was arelatively modest criminal enterprise geared towards the sale of methamphetamine,with the vast majority of the other offending being a by-product of that primaryoffending. The operation itself was relatively pedestrian; it involved diversionarytactics, coded language and multiple phones but lacked real sophistication. For themethamphetamine offending alone the appropriate starting point was 16 years'imprisonment.[32] Ms Taylor-Cyphers emphasised that the quantity of methamphetamineinvolved in Mr Glassie's case was only 10 grams and submitted that too much weightwas placed on his role. The Judge was wrong to rely on the transaction involvingMr King: Mr Glassie was not charged with supplying methamphetamine to him andthere was a risk of double-counting since that charge attracted an uplift. She acceptedthat Mr Glassie had a lead role in the cannabis offending but that was not evidence ofhis role in the methamphetamine offending. Mr Glassie's debt collectionresponsibilities related to his role within the organised criminal group and were not anaggravating feature of the methamphetamine offending. The absence of physicalitems which might indicate commerciality suggested Mr Glassie was not a significantcommercial player. A starting point of no more than three years was warranted for themethamphetamine offending.[33] We accept that Mr Duff did not operate at a higher functional market level thanhis co-offenders. He was not an importer or wholesaler. Rather, he led a mid-leveldistribution operation. But having regard to the quantity and his leading role in theoperation, we do not accept the Judge was wrong to begin with a starting point of17 years' imprisonment. His offending is comparable to that in Paora, in whichthis Court also emphasised that role is an important consideration.48[34] Nor do we accept that the starting point for the methamphetamine andorganised criminal group offending was too high in Mr Glassie's case. Role matters agreat deal. It may sometimes result in a starting point matching or exceeding that ofsubordinates who physically handled substantially larger quantities ofmethamphetamine.49 We do not accept that the Judge was wrong to rely on thetransaction involving Mr King when setting the starting point; he did not suggest thatMr Glassie supplied the methamphetamine, rather that the transaction evidencedMr Glassie's central role in the gang's drug business. He was right about that. And inthis case Mr Glassie undoubtedly did handle larger quantities; he is not to be sentencedon the basis that 10 grams is the full measure of his culpability. We do not acceptthe Judge was wrong to adopt a starting point for this group of charges of five and ahalf years' imprisonment.UpliftsMr Duff[35] Mr McColgan accepted that an uplift for the remaining offending wasappropriate, but he argued that it should have been a bulk uplift rather than a discreteone for each group of offending. The result was that Mr Duff's offending was treatedas effectively equivalent to that of, for example, Mr Yip, who had a leading role in theimportation of 60.9 kilograms of methamphetamine.5048 Paora v R, above n 10, at [29].49 Zhang v R, above n 34, at [110].50 At [300], setting a starting point of 23 years' imprisonment.Mr Glassie[36] Ms Taylor-Cyphers acknowledged that the balance of the offending requiredan uplift but submitted that the uplift given was effectively 100 per cent of the startingpoint on the methamphetamine charges. She submitted that the Judge's approachoffended the totality principle. The uplift for the cannabis offending ought to be lowerthan that of Mr Duff.Discussion[37] We do not accept that the Judge erred by adopting the approach that he didto uplifts. It was orthodox to divide offending having different features into severalgroups and consider the starting point that each group would attract standing alone,then apply a discount for totality.[38] Nor was the Judge wrong to adjust for totality when calculating each ofthe uplifts. His approach made his reasoning transparent; he first assessed the startingpoint for each group of offending then discounted it for totality. We do not accept thatsomething has gone wrong when, in Mr Glassie's case, uplifts collectively come closeto matching the starting point for the lead offending. That is a product of the featuresof his particular offending.[39] The relevant question is whether the overall allowance for totality wassufficient having regard to the fact that all this offending occurred within an organisedcriminal group and as part of its business dealings over a period of some months.[40] The Judge did not record that he had stood back and considered whether theoverall starting point was correct, but there is no reason to think he overlooked theneed to do so. Each of the totality allowances was substantial, and in the end we arenot persuaded that the overall starting points were excessive for either appellant.The cannabis offending was on a substantial scale and highly organised. We seenothing significant in the adoption of the same uplift for the two appellants;both played a leading role and totality was considered.[41] Importantly, it would have been appropriate to impose cumulative sentencesfor the offences striking at the administration of justice (and, in Mr Duff's case,possession of the pistol). Offending of this kind is not to be regarded as a mere incidentof commercial drug dealing. And deterrent sentences are appropriate where a realattempt is made to pervert the course of justice in a serious way, as happened inthis case. The offending was brazen and calculated. The attempt to locate Mr Kingcould have ended very badly for him. In our view the mere two-year adjustment thatthe Judge made for totality was, if anything, generous.DiscountsMr Duff[42] As noted, the discounts given summed to 30 per cent plus two months.(a) The guilty plea discount[43] Mr McColgan submitted that the discount of 15 per cent was too low, relyingon the need to review a very large amount of discovery and an intimation to the Crownthat Mr Duff intended to plead guilty. He submitted that 20 per cent ought to havebeen allowed. He contended that the authorities are unclear on the relationshipbetween disclosure and the guilty plea discount, referring to the judgments ofthis Court and the Supreme Court in Hessell v R.51[44] It is true that the authorities do not say that a full guilty plea discount isavailable until disclosure has been completed. But the applicable principles are notunclear. Sizing the guilty plea discount is an evaluative decision.52 The timing ofthe plea, relative to charge and trial, is not the only consideration.53 As this Courtexplained in Moses v R, the discount should be fixed by reference to the establishedrationales, which take the form of benefits to the judicial system and participantsin it:5451 Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 [Hessell (CA)]; and Hessell v R [2010] NZSC135, [2011] 1 NZLR 607 [Hessell (SC)].52 Hessell (SC), above n 50, at [65].53 At [70]; and Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [19].54 Moses v R, above n 52, at [23] (footnote omitted). We note that atonement to the victim may alsocontribute to the discount. the relevant circumstances of the case must be those that engage anyapplicable rationales for the discount. The rationales established bythe Supreme Court [in Hessell] suggest that, among other things, the scale andcomplexity of the trial, the proximity of the plea to first appearance or to trial,the justification for any delay, the inevitability or otherwise of conviction,the benefits of not giving evidence for victims and witnesses, and the victim'sexperience of atonement following the offender's acceptance of responsibilitymay affect the amount of the discount, which may range from 25 per cent tonothing.The Court went on to note that an early guilty plea may be the best evidence ofremorse, for which an additional discount may be available.55[45] A plea should be considered early if given after initial disclosure and legaladvice, which normally happens by the time of the second appearance inthe District Court.56 At that stage the defendant may have had the opportunity to takeadvice on the implications of the plea.57[46] As this Court held in Hessell, a defendant is thereafter entitled to awaitcompletion of disclosure and to undertake pre-trial challenges to the defence case.58But that may entail loss of some of the advantages of an early plea for the State andparticipants in the trial. In such a case the defendant need not be given full credit forthe plea.59 However, the sentencing judge may accept that it would be unrealistic toexpect pleas on the basis of initial disclosure, so that a plea entered at some later dateis still considered early.60 Each case must be assessed on its own merits.[47] In this case, the insuperable difficulty confronting Mr Duff is that disclosurewas substantially complete in March 2020. His pleas were not entered until more thana year later, 22 months after he was charged. Other defendants pleaded guiltymuch sooner. The Crown case was also very strong. It rested in substantial part onintercepted communications in which the defendants spoke freely.55 At [25].56 Hessell (CA), above n 50, at [29]; and Hessell (SC), above n 50, at [75].57 Hessell (SC), above n 50, at [75].58 Hessell (CA), above n 50, at [32].59 At [32].60 See Hessell (SC), above n 50, at [68].[48] So far as the intimation is concerned, counsel agreed before us thatMr McColgan emailed Crown counsel on 7 February 2021 advising that Mr Duff hadprovided instructions not to take his matters to trial, but that counsel sought untilApril 2021 to be able to properly advise him. Mr McColgan explained that he did notmeet his own deadline because of the volume of disclosure, and in June Crown counselemailed to advise the Crown was preparing its case in the expectation that the trialwould proceed. No response was received until 15 July, when Mr McColgan advisedthat Mr Duff would plead guilty.[49] We accept the submissions of Ms McConachy, for the Crown, that somethingmore than the intimation given on 7 February was needed to stop time running for thepurposes of the guilty plea discount. As the Court reiterated in Paora, it remains bestpractice to advise the Crown and the Court in writing of what the defendant is willingto plead to, and when.61 The Crown Solicitor had to prepare for a complex trial.She might well have earned a rebuke from the trial court had she sought a lateadjournment on the ground that she had earlier pulled up stumps, relying on anintimation that was conditional on defence counsel reviewing disclosure.[50] For these reasons we are not persuaded that the discount given was inadequate.(b) Addiction[51] Mr McColgan submitted that there was sufficient evidence of amethamphetamine addiction and the Judge was wrong to discount it on the ground thatit was founded on Mr Duff's self-report to the writer of the s 27 report. He argued thataddiction is frequently self-reported.[52] Following Zhang, addiction may mitigate sentence in two relevant respects.It may reduce moral culpability and, because addiction can be treated, it may point topotential for rehabilitation. To mitigate culpability in a material way it must have acausal connection to the offending.62 That connection is likely to be absent where the61 Paora v R, above n 10, at [36].62 Zhang v R, above n 34, at [145], [147] and [150].offending is commercial in nature.63 Any such discount should be based on persuasiveevidence, as opposed to mere self-reporting.64[53] Courts and prosecutors frequently take a pragmatic approach to proofof addiction. They may choose to rely on what the defendant has said. Although it isa stand-alone mitigating factor, it is often associated with cultural, economic or socialdeprivation. For that reason the defendant's claim is sometimes recounted bythe writer of a s 27 report.[54] But as Zhang makes clear, courts and prosecutors need not accept self-report,especially where there is nothing in the PAC report to support it and no independentevidence to support the defendant's claims.65 Evidence may be found in thedefendant's family, educational, employment or health background, including pastrehabilitation efforts, and criminal history.[55] In modern practice addiction can earn discounts of a substantial size.66 For thatreason disputes can be expected. As with any other mitigating fact, addiction must beproved under s 24 of the Sentencing Act 2002 if the prosecutor does not accept it.The procedure is that the Court will indicate the weight that it is likely to attach to thedisputed fact and a sentencing hearing may then be convened. The standard of proofis the balance of probabilities.[56] In this case submissions were exchanged very shortly before thesentencing hearing. When the Crown learned that Mr Duff claimed an addiction tomethamphetamine, it supplied the Court with transcripts of interceptedcommunications in which he said he had not used the drug for seven years and neversmoked it and spoke disparagingly of those who do. No disputed facts hearing wascalled for. Rather, the Judge was left to make of it what he could. We were not askedon appeal to remit the case to him for a disputed facts hearing.63 At [147].64 At [148].65 At [148].66 At [149].[57] We are not persuaded that the Judge was wrong to reject the claim that Mr Duffhas a methamphetamine addiction, let alone that it had a causal connection to hiscommercial dealing in that drug. It was made both to the writer of the PAC report andto Ms Turner, but it rested on self-report. We observe that Mr Duff chose not to offerthe writer of the PAC report contact details for anyone who might verify his account.He ought to have done so if he wanted to have it taken seriously.[58] As noted earlier, Ms Turner also offered an opinion to the effect that addictionaccounted for Mr Duff's behaviour. Had her opinion been given in evidence, shewould have to qualify herself as an expert — which we are prepared to assume shemay be able to do, by training or practising experience in her field — and undertaketo abide by the Code of Conduct for Expert Witnesses. Of course she did not preparethe s 27 report in the expectation that she would be called at a disputed facts hearing.It did not take the form of an expert's brief of evidence and she advocated strongly forMr Duff. Advocacy is permissible, even welcome, under s 27, which allows a courtto hear a person called by the offender to speak on their background and itsconsequences, but it is not permitted in expert evidence. The Judge remarked on herfailure to qualify herself and the element of advocacy because he was looking from anevidential perspective at what had become a disputed fact.67 It was a fair point; heropinion was in dispute and he had to decide what to make of it. We are not persuadedthat he was wrong to discount it.[59] Nor was the Judge wrong to discount counsel's submission that Mr Duff waslying in the intercepted communications because gang culture prohibits use ofmethamphetamine. There was no evidence of that. There was evidence that Mr Duffregularly used MDMA, and the Judge gave a suitably modest discount for it. It appearsthat to the extent the discount for rehabilitation reflected Mr Duff's participation indrug treatment, the Judge was responding to his use of MDMA.(c) Deprivation[60] The Judge reviewed the s 27 report, accepting that it detailed early emotionaland socio-economic deprivation and disconnection from te ao Māori. The question67 Sentencing notes of Mr Duff, above n 1, at [78].was whether Mr Duff's background had a causal connection to the offending.The Judge accepted that the connection between deprivation in an offender's earlyyears and their later offending need not be close. But he had little information aboutthe last 20 to 30 years of Mr Duff's life, and the material he had suggested Mr Duffhad made good; he was a hard worker who was in a long-term stable relationship,he had three sons, the family earned a good income, he had stopped offending in hislate 30s and he did not join the gang until around 40 years of age.68[61] Mr Duff unquestionably had a hard upbringing. His history includes manymarkers of deprivation. He was one of nine children raised by his mother, who was15 when he was born. His grandfather, a man who used harsh physical discipline, wasthe only father figure in his life. There is some inconsistency in the accounts he gavein the s 27 and PAC reports but it appears that at the age of 10 he went to live with hisgrandparents in Palmerston North. His education was transient and inconsistent.He was disconnected from his culture and te ao Māori. At the age of 13 he was placedin State care at Kohitere, followed by a period at Epuni Boys' Home. Those factsspeak for themselves. He then spent a period in Australia before returning to live withhis grandparents in Tūrangi. From them he acquired a strong work ethic.He accounted for his offending by saying he wanted to be able to give his family"nice stuff", so proving himself a winner. He says that he is no longer a member ofthe Rebels, who closed the chapter and threw him out after his arrest.[62] The discount of five per cent was modest given Mr Duff's deprived youth.This was commercial offending motivated on his own account by a desire for nicethings, but that does not rule out a causal connection. The Judge described Mr Duff'schildhood household as stable, which is not our reading of the s 27 and PAC reports.69It may be that, as the s 27 report suggests, Mr Duff never ceased to behave in antisocialways that are ultimately attributable to his severely deprived background. However,on the material before the Judge, Mr Duff had overcome his disadvantages to aconsiderable extent by the time he joined the gang in his 40s, and as we have said thiswas commercial offending which was not driven by poverty. For these reasons we arenot persuaded that the Judge was wrong to limit the discount to five per cent.68 At [80]–[82].69 At [82].(d) Rehabilitation[63] Mr McColgan pointed out that the Judge accepted Mr Duff had doneeverything possible to access help in prison and had exhausted virtually allrehabilitative options available to him.70 When coupled with his genuine motivationto change, this justified a discount of more than five per cent. We accept that genuinerehabilitative efforts should receive tangible recognition, especially where they havereal prospects of success as in this case.(e) Overall assessment[64] Were we sentencing Mr Duff we would have allowed more for hisdemonstrated rehabilitative efforts and potential. He could scarcely have done moreto demonstrate it. This Court has often made clear that rehabilitative efforts andpotential may justify significant discounts. In this case his co-offender, Mr Glassie,received 10 per cent for similarly disciplined efforts.[65] The appellate question is not whether the allowance for a given mitigatingfactor was inadequate. It is whether the end sentence was manifestly excessive.The effective sentence imposed on Mr Duff was stern, deservedly so. But that doesnot preclude real credit for genuine and apparently successful rehabilitation. We thinkhis efforts deserve more credit than they received here. We would increasethe discount to 10 per cent, recognising that he also received five per cent for remorse.The resulting adjustment, of a little over one year, is sufficient to justify appellateintervention. The sentence must be adjusted accordingly.Mr Glassie[66] The overall discounts for Mr Glassie also summed to 30 per cent. The guiltyplea discount of seven and a half per cent was not challenged. We mention it becausein our view it was generous. A plea entered so close to trial and in the face of a verystrong Crown case could have been limited to five per cent.70 At [84].(a) Addiction and cultural deprivation[67] Ms Taylor-Cyphers dealt with these together, asking for a discount of15 per cent. As noted above, the Judge did not accept that Mr Glassie had shown hewas an addict — there was not "persuasive evidence of a clinical diagnosis ofaddiction"71 — or that any addiction was causal, but the Judge did allow seven and ahalf per cent for Mr Glassie's "connection with illegal drugs over many years".72And the Judge was not prepared to allow a discount for cultural deprivation.73[68] No attempt was made to invoke s 24 of the Sentencing Act to prove addiction,the Judge being left to make the best of it. For the reasons we have already givenwhen addressing Mr Duff's appeal, the Judge need not accept the opinion of the writerof the s 27 report, Ms Turner, that methamphetamine addiction had been Mr Glassie'sundoing. That opinion took his self-report at face value. However, Mr Glassie'scriminal history is consistent with use of methamphetamine. The PAC reportconfirmed that he was also engaged in or had completed drug rehabilitationprogrammes. An allowance for addiction was appropriate. Mr Glassie's difficulty isthat he cannot say on the material before us that the Judge was wrong to limit it toseven and a half per cent.[69] Mr Glassie is of Cook Island heritage but has little connection with his culture.He was raised in Tokoroa, in a devout Mormon household which broke down whenhis mother left and moved to Australia when he was aged 11. His father is reported tohave been an alcoholic and a gambler who was emotionally absent. After his mother'sdeparture Mr Glassie was left to his own devices to some extent, but he remained atschool through the 7th Form and appears to have been successful in sports.He subsequently gained employment in the timber industry and claims he moved jobsregularly to avoid drug testing. He later moved into sports teaching (mixed martialarts), then into social work. He became a successful youth mentor and life coach,eventually working in a secondary school and then as a youth worker. He andhis partner of 14 years parent four children and he appears to retain strong familysupport. He grew up in poverty, but it does not appear his family was impoverished71 Sentencing notes of Mr Glassie, above n 2, at [53].72 At [52].73 At [52].when he became involved in this offending. He joined the Rebels at the age of about38 and attributes this to his need for drugs.[70] Mr Glassie's background certainly includes family dysfunction and exposureto alcohol abuse. There appears to be an element of cultural dislocation. But it cannotbe said that he is an under-achiever, nor does it appear that he was exposed to violenceat home. As an adult he appears to have made a success of his life, forming a stablerelationship and achieving success as a coach and youth worker. We are not persuadedthat the Judge was wrong to point to the absence of a causal connection betweendeprivation and this offending.(b) Rehabilitation[71] Ms Taylor-Cyphers urged us to adopt a discount of 15 per cent rather than the10 per cent chosen by the Judge.[72] The PAC report and the s 27 report agree that Mr Glassie exhibits insight andis committed to rehabilitation. As we have noted, he has undertaken drugrehabilitation programmes. He offered impressive references from CareNZ, attestingto the quality of his participation. As noted, he was also given a discount of fiveper cent for remorse. We are not persuaded that the Judge was wrong to fix thediscount at 10 per cent.(c) EM bail[73] It is common ground that the Judge was wrong to decline an allowance for timeon EM bail on the basis that it allowed Mr Glassie to access rehabilitation, so earninga separate discount. We agree. It is true that time spent complying with bail conditionsevidences rehabilitative potential.74 To that extent there is a connection. But it doesnot follow that an offender who has made good use of bail by engaging inrehabilitation should be refused credit for restrictive bail at sentencing. Credit is givenbecause strict conditions may seriously constrain liberty and time on bail is not takeninto account when calculating time served.74 Paora v R, above n 10, at [42].[74] EM bail may afford the defendant substantially greater autonomy, includingflexibility of movement and contact, than a prisoner enjoys. For that reason theallowance is unlikely to approach one-for-one.75 Allowances of up to 50 per cent ofthe time spent on EM bail are commonly made, though that is not an upper limit.76The defendant must show that the conditions of bail were complied with.[75] Mr Glassie spent just under two years on EM bail. He was on a 24-hour curfew.He did not work but he was permitted to leave the address to attend rehabilitationprogrammes. He was not permitted to possess any phone or communications deviceand he could not receive visitors without prior permission of the hosts. There werethe usual conditions prohibiting the use of alcohol and drugs, and a non-associationorder with other defendants. These conditions were somewhat less stringent than thoseof the defendant in Paora, but they did confine Mr Glassie to his home for along period. It is not in dispute that he complied with his conditions throughout.[76] Ms Taylor-Cyphers sought a discount of 15 per cent, which we take to be basedon the starting point. Allowances for restrictive bail are usually calculated as aproportion of the time spent on bail. In this case we consider that an allowance of10 months, or approximately 40 per cent of the time spent on EM bail, wasappropriate.(d) Overall assessment[77] The sentence must be adjusted to reflect the allowance for EM bail.Disposition[78] The effective sentences will be adjusted as follows.Mr Duff[79] The appeal in CA201/2022 is allowed.75 At [50]–[51].76 At [53].[80] The sentence of 15 years' imprisonment is quashed and substituted with asentence of 14 years, two months' imprisonment.Mr Glassie[81] The appeal in CA88/2022 is allowed.[82] The sentence of seven years' imprisonment is quashed and substituted with asentence of six years, two months' imprisonment.Solicitors:Crown Solicitor, Rotorua for Respondent