IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA544/2018
 [2020] NZCA 277

	
BETWEEN	
RIKI WELLINGTON
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
22 June 2020	

Court:	
Gilbert, Ellis and Katz JJ	

Counsel:	
M W Ryan and J-A E Tulloch for Appellant
Z A Fuhr for Respondent	

Judgment:	
8 July 2020 at 2 pm	

JUDGMENT OF THE COURT

A	The application to adduce further evidence is granted.
B	The appeal against sentence is allowed.
C	The sentence of 13 years’ imprisonment imposed on the appellant for possession of methamphetamine for supply on 18 October 2016 is set aside.  A concurrent sentence of 11 years and four months’ imprisonment is substituted.  
D	The minimum period of imprisonment of five years is set aside and replaced with a minimum period of four years and four months’ imprisonment.
E	The other concurrent sentences imposed on the appellant are confirmed. 
____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)
[1]	Following a trial by jury in the High Court at Auckland, Mr Wellington was found guilty of four charges of possession of methamphetamine for supply and two charges of supplying methamphetamine.  He was sentenced by Palmer J on 24 August 2018 to 13 years’ imprisonment and ordered to serve a minimum period of five years’ imprisonment.  Mr Wellington now appeals against his sentence. 
[2]	Mr Wellington has filed further evidence in support of the appeal, being a psychological assessment report of Dr Hamish Bartle.  The Crown does not oppose the admission of this evidence and we grant leave to adduce it.
Brief facts
[3]	Mr Wellington was involved in a significant methamphetamine supply and distribution network that operated in Auckland and Christchurch.  The Judge outlined the roles played by various individuals in this network.  Mr Hughes was said to be the principal organiser of the network, working directly for an unnamed “ringleader”.  Mr McArley was Mr Hughes’ “trusted lieutenant” and was actively involved in planning, organising and implementing the overall distribution arrangements.  Mr Wellington ran the distribution network in Christchurch.  His sister, Ms Wellington, was in a relationship with Mr Hughes and accompanied him and Mr McArley on various trips.  The Judge described her role as being “significantly less important”.  
[4]	The Judge set out Mr Wellington’s specific role in the offending in these terms:
… running a distribution network in Christchurch receiving large quantities of methamphetamine on four occasions in a month for supply, and on-supplying them twice.
[5]	The total quantity of methamphetamine found to be involved was 1.54 kilograms, made up as follows: 
(a)	6 October 2016 — 280 grams — possession for supply and supply.
(b)	11 October 2016 — 280 grams — possession for supply.
(c)	18 October 2016 — 700 grams — possession for supply.
(d)	27 October 2016 — 280 grams — possession for supply and supply.
[6]	The Judge succinctly summarised the facts of Mr Wellington’s offending as follows:
6 October 2016
[25]	… [Mr Wellington] flew to Auckland with [his] children.  [He] met with Mr Hughes and Mr McArley.  [Mr Wellington] and Mr McArley drove to Christchurch with the methamphetamine.  [Mr Wellington] on-supplied it to a network of customers or other suppliers. …
11 October 2016
[26]	… Ms Wellington flew down to Christchurch with Mr Hughes with the methamphetamine and supplied it to Mr Wellington …
18 October 2016
[27]	… [Ms Wellington] and Mr McArley drove down from Auckland, crossed Cook Strait by ferry and met Mr Wellington in a motel in or near Picton.  Mr Wellington [was] convicted of possessing that methamphetamine for the purpose of supply. …
27 October 2016
[28]	… [Ms Wellington] and Mr Hughes drove from Auckland to Christchurch and met Mr Wellington in the Coachman Motel where [they] supplied [Mr Wellington] with methamphetamine. …  Mr Wellington … possessed at least [280 grams] of methamphetamine and supplied it to others.
Sentencing judgment
[7]	At the time of sentencing, the applicable guideline judgment was the decision of this Court in R v Fatu.  In terms of that guideline judgment, which the Judge was bound to apply, Mr Wellington’s offending fell within band four for which the indicated starting point was between 10 years’ imprisonment and life.  The Judge adopted an overall starting point of 13 years and eight months’ imprisonment.  This was arrived at by adopting the same starting point as for a co-offender, Mr McArley, for the offending on 6 and 18 October 2016 involving 980 grams, being 10 years and eight months’ imprisonment.  The Judge uplifted this by three years for the additional convictions for Mr Wellington’s further offending on 11 and 27 October 2016 involving 560 grams of methamphetamine.
[8]	The Judge uplifted the starting point by three months to reflect that the offending occurred while Mr Wellington was on parole.
[9]	The Judge then allowed two discounts for personal mitigating factors.  The first was a discount of six months to take account of the impact of the sentence on Mr Wellington’s family, including his two children, then aged two and six.  The Judge also allowed a discount of five months for the time Mr Wellington had spent on electronically monitored (EM) bail subject to a 24-hour curfew.  This resulted in the end sentence of 13 years’ imprisonment. 
[10]	The Judge briefly explained why he considered it necessary to impose a minimum period of imprisonment of five years:
[63]	Mr Wellington, I do not consider your release on parole, as soon as you are ordinarily eligible, would sufficiently denounce or hold you accountable for your supply of huge quantities of methamphetamine.  Contrary to Mr Ryan’s submissions, although we cannot identify them by name today, there are very real victims of drug offending.  Supplying methamphetamine has undoubtedly ruined lives and communities of those to whom it was supplied.  I set a minimum period of imprisonment of five years, for you Mr Wellington. 
Grounds of appeal
[11]	Mr Wellington appeals on three grounds.  These all rely to some extent on this Court’s guideline judgment in Zhang v R.  That judgment was delivered in October 2019 after Mr Wellington was sentenced and replaced the Fatu guidelines.  The appeal must be considered in the light of the new guidelines because the appeal was filed on 11 September 2018, prior to the delivery of the judgment in Zhang.  It is accordingly not necessary for Mr Wellington to demonstrate any error in the Sentencing judgment on appeal.
[12]	The appeal grounds are:
(a)	The starting point of 13 years and eight months’ imprisonment was too high in view of the adjusted bands in Zhang.  Mr Ryan, for Mr Wellington, submits that an appropriate starting point would be of the order of 12 years’ imprisonment. 
(b)	A discount should be given for Mr Wellington’s personal background and his addiction to methamphetamine.  In support of this ground of appeal, a psychological assessment report from Dr Hamish Bartle, a clinical and forensic psychologist, has been provided.  Mr Ryan explains that no such report was commissioned for the purposes of sentencing in the High Court because common sentencing practice prior to Zhang was to place little weight on personal mitigating factors in serious drug offending of this type.  In Zhang, this Court made it clear that this approach is not correct and proper account must be taken of personal mitigating factors, as is the case in sentencing for any other type of offending.
(c)	No minimum period of imprisonment was justified.  This Court stated in Zhang that a minimum period of imprisonment is not presumptively required whenever a sentence of nine years’ imprisonment or more is imposed.  No minimum period of imprisonment can be imposed without proper justification supported by fully reasoned analysis. 
Is the starting point too high in view of Zhang?
[13]	As noted, the Judge was bound to apply Fatu.  His overall assessment that Mr Wellington’s offending required a starting point of 13 years and eight months’ imprisonment is unimpeachable when the indicative range for offending in band four of Fatu (500 grams or more) was from 10 years’ imprisonment to life.  
[14]	However, the question on appeal is whether a different starting point is appropriate applying the new guidelines in Zhang.  The indicative range of starting points for offending in this band has been significantly reduced — at the top end from life to 16 years’ imprisonment and at the bottom end from 10 to eight years’ imprisonment.  This reduction has resulted in numerous sentence appeals being allowed applying the new guidelines.
[15]	For example, Mr Zhang’s starting point for his (significant but lower end) role in the importation of 17.9 kilograms of methamphetamine was reduced from 17 years’ imprisonment to 15.  In Chai v R, the starting point for Mr Chai’s significant role in the importation of two kilograms of methamphetamine (“an organising, operational role … solely motivated by financial and related advantage”) was similarly reduced by two years, from 15 years’ imprisonment to 13.  Kós P, writing for the Court, made the following observations which are of assistance in the present case:
… the quantity here, two kilograms, is right on the cusp of bands four and five.  So that means, for instance, that the ringleader of a supply chain concerned with say 1.95 kilograms might expect a starting point near the band four top of 16 years.  A person in the chain with an unequivocally lesser role (but the same 1.95 kilograms) might expect 10 years (up from the eight year starting point, because the band starts at only 500 grams).  Logically, someone in between (i.e. significant role and 1.95 kilograms) might expect between 12 and 14 years.  
[16]	One other post-Zhang judgment is particularly instructive — Hall v R.  One of the appellants in that case, Mr Roberts, had a leading role in the manufacture of a significant quantity of methamphetamine —1.142 kilograms.  The starting point in his case was again reduced by two years applying Zhang, from 14 years’ imprisonment to 12.  
[17]	As noted, the Judge described Mr McArley as the “trusted lieutenant” of Mr Hughes, who was said to be the principal organiser of the network and who worked for the ringleader.  Mr Wellington also dealt directly with Mr Hughes but the Judge stated that Mr Wellington’s offending “involved more methamphetamine and a greater role than that for which Mr McArley was convicted”.  It is not disputed that Mr Wellington’s offending was financially motivated and yielded significant profits.  There can be no doubt he played a significant role in the distribution of commercial quantities of methamphetamine in Christchurch.  
[18]	We consider the appropriate starting point under Zhang is 12 years’ imprisonment.  This compares with the example given in Chai of someone with a significant role and 1.95 kilograms who might expect a starting point between 12 and 14 years’ imprisonment.  The lesser quantity involved here suggests the starting point should be at the bottom of this range.  While the quantity here is greater than that for which Mr Roberts was sentenced (1.54 kilograms compared to 1.14 kilograms), this is offset by the leading role played by Mr Roberts as a manufacturer compared with the lesser, albeit significant, role played by Mr Wellington down the distribution chain.  This justifies the same starting point of 12 years’ imprisonment for Mr Wellington as for Mr Roberts.
Should there be a further discount for personal mitigating factors?
[19]	The Judge allowed no discount for addiction issues, nor could he have done so.  The only information available to the Judge on this issue came from the probation report, which contained the following statement about Mr Wellington’s drug use:
Drug Use
Mr Wellington stated alcohol “disagreed” with him, and only consumed alcohol on the rare “social occasion”.  Records indicate that Mr Wellington became heavily intoxicated during the occasional “session”, but no other concerns were raised.  At interview, Mr Wellington denied using drugs, and in particular voiced his contempt for methamphetamine, as he has “seen what drugs can do to people”.
[20]	Notwithstanding his advice to the probation officer, which was not contradicted at sentencing, Mr Wellington now says on appeal that he has serious addiction issues, which contributed to his offending.  Mr Ryan relies on Dr Bartle’s report in support of this ground of appeal.  Based on Mr Wellington’s self‑report, Dr Bartle assesses him as suffering from “severe methamphetamine use disorder”.  Mr Wellington told Dr Bartle that he commenced cannabis use at age eight, alcohol at age 12, and methamphetamine at age 14.  He further advised Dr Bartle that his methamphetamine use ultimately led to him losing his employment and taking up the offer of a role distributing methamphetamine.  This is the primary foundation for Dr Bartle’s observation that Mr Wellington’s methamphetamine addiction is linked to his offending:
… Mr Wellington had developed a severe substance use disorder at the time of his index offending, and this played a significant role at [a] number of critical junctures on his offence pathway in terms of reducing supports, influencing his decision making, and increasing exposure to negative influences and risk.      
[21]	Dr Bartle considers that Mr Wellington presents as having a high risk of reoffending and a high level of treatment need.  
[22]	Ms Fuhr, for the Crown, accepts Dr Bartle’s report provides persuasive evidence that Mr Wellington suffers from an addiction to methamphetamine.  However, the critical question is whether the report establishes a causal connection between Mr Wellington’s addiction and the commercial-scale offending he engaged in.  As this Court said in Zhang, “commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice”. 
[23]	We accept that Mr Wellington’s addiction to methamphetamine was a factor in his offending in that he received part-payment for his services in methamphetamine.  However, we are not persuaded that Mr Wellington’s offending was driven by the need to feed his addiction rather than the exercise of a rational choice.  It seems clear that in taking up the offer to become a distributor in Christchurch, Mr Wellington was primarily motivated by the significant profits he could make from doing so.  Dr Bartle’s report confirms this, referring to the offending as “a financial activity”.  We consider Mr Wellington’s position in this respect is indistinguishable from the commercial-scale offenders in Smith v R, Royal v R, and Hall v R.
Is a minimum period of imprisonment justified?
[24]	We set out at [10] above the Judge’s explanation for imposing a minimum period of imprisonment.  This was said to be required to denounce Mr Wellington’s conduct and to hold him accountable for his supply of “huge” quantities of methamphetamine, bearing in mind the very real victims of this type of drug offending.  
[25]	We are not persuaded there is any error in this assessment.  In Zhang, this Court observed that minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing.  More recently, in Chai v R, this Court stated that a minimum period of imprisonment may be expected in cases of recidivist or commercial methamphetamine dealing.  Mr Wellington falls into this latter category.  We consider the Judge’s assessment that a minimum period of imprisonment of approximately 38 per cent of the end sentence was both measured and appropriate.  Given we have reduced the starting point to reflect the new guidelines in Zhang, the minimum period of imprisonment should be adjusted accordingly.  
Conclusion
[26]	While the starting point adopted by the Judge of 13 years and eight months’ imprisonment was entirely appropriate applying Fatu, we are persuaded it should be reduced to 12 years in accordance with the new guideline judgment in Zhang.  It is not contended the Judge made any error in the uplift of three months imposed to reflect that the offending occurred while Mr Wellington was on parole.  Nor is there any challenge to the 11-month discount the Judge applied for the two personal mitigating factors, being the impact on his family and time spent on EM bail.  Those three adjustments will remain unaltered.  We are not persuaded any further discount for Mr Wellington’s methamphetamine addiction is warranted in this case given that his commercial-scale offending was motivated by profit.  Finally, we agree with the Judge that a modest minimum period of imprisonment is required.  This will be adjusted solely to reflect the lower starting point.  
[27]	These adjustments result in an end sentence of 11 years and four months’ imprisonment.  The adjusted minimum period of imprisonment of 38 per cent becomes four years and four months.
[28]	We wish to emphasise that there is no criticism of the sentencing exercise carried out by Palmer J.  It was entirely consistent with this Court’s guideline judgment in Fatu.  The outcome of this appeal simply reflects the reduction in the relevant sentencing band.  
Result
[29]	The application to adduce further evidence is granted.
[30]	The appeal against sentence is allowed.
[31]	The sentence of 13 years’ imprisonment imposed on the appellant for possession of methamphetamine for supply on 18 October 2016 is set aside.  A concurrent sentence of 11 years and four months’ imprisonment is substituted.  
[32]	The minimum period of imprisonment of five years is set aside and replaced with a minimum period of four years and four months’ imprisonment. 
[33]	The other concurrent sentences imposed on the appellant are confirmed.  

Solicitors: 
Crown Law Office, Wellington for Respondent